Supreme Court strikes down ban preventing asylum seekers working

Five judge court had unanimously ruled in May that the ban was unconstitutional

The Supreme Court has formally struck down the absolute ban preventing asylum seekers working in the State as unconstitutional.

The five judge court unanimously ruled in May last year, in a judgment delivered by Mr Justice Donal O’Donnell, the absolute ban was unconstitutional “in principle” but it deferred making a formal declaration for six months to allow the legislature address the situation.

When the case returned before the court in November, the State looked for more time to put measures in place but the court said it intended to make the declaration on February 9th, regardless of what progress the State had made.

The court was told in November the Government was in the process of opting into the EU Reception Directive, which requires member states to afford the right to work in certain circumstances. The State will have a four month interim period from February 9th to fully opt into the directive and draw up its own work-permit system for asylum seekers.


The Chief Justice, Mr Justice Frank Clarke, said in November the court had “exceptionally” not taken the normal course of immediately declaring the provisions to be unconstitutional and recognised there were choices to be made as to how the difficulty identified was to be addressed.

The court said the balance of justice would be met by affording the State a relatively brief period to take whatever measures the State considered necessary but the court intended to make a formal declaration on February 9th.

Today, the Chief Justice said the court was formally declaring that the ban, as set out in Section 16.3.b of the International Protection Act, is inconsistent with the Constitution and no longer forms part of the law.

The ban was challenged by a member of the Rohingya minority from Myanmar who spent eight years in direct provision before getting refugee status.

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

He had attended all previous court hearings but was not in court on Friday. His solicitor Albert Llussa said he is unwell.

The Government's proposals to address the situation were announced last month by the Minister for Justice Charlie Flanagan, but have met with criticism from migrants rights groups as being too restrictive.

The proposals require that applicants must secure a job that pays a starting salary of at least €30,000 per annum and that cannot otherwise be filled by an EU citizen, or a person with full migration permission in Ireland.

Applicants will have to pay between €500 to €1,000 for a six to 12 month employment permit and are unable to apply for a job in more than 60 different areas.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times