Supreme Court considering right to work of asylum seekers

Man who lived in direct provision claims he suffered damage to dignity and self-worth

A seven-judge Supreme Court is hearing an important appeal concerning the right to work here of asylum seekers.

The appeal is by a Burmese man who lived in direct provision for more than eight years before he recently got refugee status. The case is against the Minister for Justice with the Attorney General and Irish Human Rights and Equality Commission as notice parties.

The man had argued, while living in direct provision on a €19 weekly allowance, he suffered depression, “almost complete loss of autonomy” and being allowed work was vital to his development, personal dignity and “sense of self-worth”.

Shortly after coming here in late 2008, he was refused refugee status but appealed. After the High Court found errors in how his applications were decided, there were rehearings before the Refugee Appeals Tribunal which last September granted him refugee status.


That means he can now legitimately seek employment and the State says the Supreme Court should therefore dismiss as pointless his appeal against the Court of Appeal’s two-to-one rejection of his case.

When the appeal opened on Tuesday, Michael Lynn SC, for the man, urged the court not to declare it moot and decide the core issues. He argued the Minister for Justice has discretion to permit asylum seekers in a position similar to the man to work, including on a temporary basis.

Counsel disputed the Minister’s claims that could act as an incentive for others to enter the State. No “sane person” would want to live in direct provision for more than eight years, he submitted.

Feichin McDonagh SC, for the commission, argued the Minister had discretion to permit an asylum seeker to work and there was no “absolute” legal bar on the Minister doing so.

Constitutional right

Opposing the appeal, Nuala Butler SC, for the Minister, argued a foreign national present in the State on a conditional basis had no constitutional right to work.

In exchanges with counsel, some of the judges queried if asylum seekers have constitutional rights including to bodily integrity and fair trial, why they have no right to work.

Ms Butler said asylum seekers here have certain rights but not the same right to work as Irish citizens. The State was entitled to control permission to enter its territory and to control foreign nationals while they are here, she said.

She also submitted the man’s case involved “unusual” and “extraordinary” delays which she said are not representative of the experience of the vast majority of asylum seekers.

“Hard cases make bad law” and the State is concerned permitting a right to work to some asylum seekers would lead to migrants “flooding” into the State, she said. Government policy was not to grant a right to work to those awaiting decisions on international protection applications.

Among the issues raised in the case are whether section 9.4 of the Refugee Act, which prohibits the Minister granting permission to work pending a decision on applications for asylum/protection, prevents the Minister or Government granting permission to work to a person seeking asylum or protection. If the Government has no such power, the court is asked to decide if section 9.4 is constitutional.

In dismissing his case, a majority Court of Appeal ruled the open-ended nature of the ban on work did not mean section 9.4.b of the Refugee Act is unconstitutional and it rejected as “too broad a proposition” that non-Irish citizens enjoy the same general rights as Irish citizens.

Mr Justice Gerard Hogan disagreed. He ruled the man has a personal right under article 40.3 of the Constitution to work here and section 9.4.b unconstitutionally struck at the "very substance" of that constitutional right. The Supreme Court appeal has been adjourned to resume on February 15 th.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times