Supreme Court to hear test case on asylum seeker’s ‘right to work’

Court to examine whether constitutional rights extend to non-nationals seeking refugee status

A Burmese man living in direct provision for more than seven years is entitled to bring a further appeal against the rejection of his “right to work” case, the Supreme Court has ruled.

Noting the delays in the asylum system, the court said the man’s case raises issues of “widespread importance” concerning whether an asylum seeker awaiting a decision on their application for asylum or protection is entitled to seek to earn a livelihood.

The decision, by Chief Justice Susan Denham and Judges Peter Charleton and Iseult O’Malley, means the man may bring an appeal to the Supreme Court against the Court of Appeal’s dismissal, by a two to one majority, of his case.

A hearing date for the appeal will be fixed later.

The issue whether an asylum seeker is entitled to seek to earn a livelihood for themselves and their family is “a matter of widespread importance” going far beyond the personal interest of this man, the Supreme Court said in its written decision granting leave to appeal.

It was “open to question” whether the relevant laws preclude the relevant minister, or government generally, from giving limited permission to work for some applicants, perhaps after a period of time, the court said.

If there was a fundamental bar on such limited permission being granted, that raised issues about the extent to which constitutional rights applied to non-Irish nationals seeking refugee status or subsidiary protection and about the constitutionality of that bar, it said.

For all those reasons, it would permit the man bring an appeal, it said.

While the issues to be addressed will be precisely identified at later case management hearings, they appear to centre on three points, the court said. These are:

(1) whether Section 9.4 of the Refugee Act, which prohibits permission to work pending a decision on applications for asylum/perotection, prevents the Minister for Justice granting permission to work to a person seeking asylum or subsidiary protection;

(2) if it does, can the government still grant permission to work pending the resolution of the asylum/protection application;

(3) if the government has no such power to grant permission to work pending the outcome of the application, is Section 9.4 constitutional?

Shortly after coming here in late 2008, the man was refused refugee status but appealed that refusal. Arising from High Court findings of errors in how his applications were decided, a re-hearing was held before the Refugee Appeals Tribunal in July 2015 and its decision is awaited.

In his High Court action seeking permission to work, the man said, having lived in direct provision since late 2008 on a €19 weekly allowance, he has suffered depression and “almost complete loss of autonomy”.

Being allowed work is vital to his development, personal dignity and “sense of self worth”, he said.

In dismissing his appeal after the High Court rejected his case, Mr Justice Sean Ryan and Ms Justice Mary Finlay Geoghegan disagreed with their Court of Appeal colleague Mr Justice Gerard Hogan that the open ended nature of the ban on work meant Section 9.4.b of the Refugee Act is unconstitutional.

The majority rejected as “too broad a propositon” that non-Irish citizens enjoy the same general rights as Irish citizens.

Dissenting, Mr Justice Hogan held the man has a personal right under Article 40.3 of the Constitution to work here.

Section 9.4 (b), by allowing open ended and indefinite exclusion for over seven years from the labour market, was unconstitutional as it struck at the “very substance” of the man’s constitutional right to earn a livelihood, the judge held.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times