Parents of boy (3) do not have proxy right to work on his behalf, court rules

‘Novel proposition’ made by parents who had applied unsuccessfully for international protection in 2016

The parents of a three-year-old boy who sought international protection did not have a proxy right to work on their son’s behalf because he was too young to do so, the Court of Appeal (CoA) has ruled.

In what the CoA described as a “novel proposition”, the parents argued that under the State’s international protection scheme which allows applicants for asylum a right to access the labour market after nine months, they should be able to exercise their son’s right to do so by proxy or derivatively.

The parents had themselves applied for international protection in 2016 but were unsuccessful. Having faced unexecuted deportation warrants for a number of years subsequently, their son was born in April 2021.

Although they had applied for the right to work during the period when their own international protection applications were being considered, they reapplied for that right but were refused on the basis that their applications had already been considered and rejected.

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Their solicitor then clarified that the new applications were made by way of proxy, meaning they had a vicarious right to work by reason of being parents of a minor applicant for international protection, whose application was then pending.

This was rejected. In April 2022, they brought High Court proceedings against the International Protection Appeals Tribunal, the Minister for Justice and Equality and the State.

In the meantime, their child’s international protection application was granted and they themselves were granted “Stamp 4″ visas which allow them to live and work in the State until September 2025.

The State respondents then asked the High Court to declare the parents’ proceedings moot, or pointless, but the court decided the case should be determined.

The parents also wanted it determined in relation to their associated claim for damages over the period during which they said they had been denied access to the labour market while their child’s international protection application was pending.

The High Court ruled their case was predicated on the false premise that the child enjoys a right of access to the labour market.

It found that no such right “inheres in the child” and the parents could not exercise, vicariously, a right which the child himself did not possess.

The parents appealed and on Wednesday, Ms Justice Ann Power, on behalf of the three-judge CoA, upheld the High Court decision.

She said the child enjoyed a right of access to the labour market under article 15 of a 2018 EU directive on minimum standards for the reception of international protection applicants.

However, that right was not comparable or analogous to the rights associated with EU citizenship, does not fall within the application of established principle, and does not give rise to a derived right on the part of the parents, she said.

The judge also said that respect for human dignity does not require article 15 of the EU directive to be interpreted in the manner contended for by the parents.

There was no failure on the part of the respondents to respect any EU or constitutional rights of the parents, she said.

In the light of these findings, their claim for damages must also fail, she said.