On 30th May 2017 the Irish Supreme Court decision on the right of asylum-seekers to work, UNHCR, the UN Refugee Agency, expressed its hope that the Irish government will amend domestic legislation to bring it into line with European laws on the rights of asylum-seekers. Currently Ireland is the only country in the European Union (EU) that currently prohibits asylum-seekers from entering employment. The Supreme Court Judgment confirms that the Irish Constitution is in line with protections afforded by EU law.
The Supreme Court held unanimously that the indefinite ban on asylum-seekers seeking employment in Ireland is contrary to the constitutional right to seek employment. Under European Law, Member States must ensure that asylum applicants have access to the labor market no later than nine months from the date when the application for international protection was lodged, if they are still waiting for a first decision on their application.
The Supreme Court allowed the appellant’s appeal. O’Donnell J., who delivered the judgment of the court, accepted that the obligation to hold persons equal before the law “as human persons” means that non-citizens may rely on constitutional rights, where those rights and questions are ones which relate to their status as human persons, but that differentiation may legitimately be made under Article 40.1 having regard to the differences between citizens and non-citizens, if such differentiation is justified by that difference in status. In principle therefore, the court accepted that a non-citizen, including an asylum seeker, may be entitled to invoke the unenumerated personal right including possibly the right to work which has been held guaranteed by Article 40.3 However, O’Donnell J. said it was necessary to consider first what exactly is guaranteed by that right to citizens; second whether the essence of the guarantee relates to the essence of human personality and thus must be accorded to some or all non-citizens who in that regard are entitled to be held equal before the law; third, whether even so a justifiable distinction may be made under Article 40.1 between citizens and lawful residents, and non-citizens and in particular asylum seekers: and finally, whether if any such distinction can be made, such differentiation may extend to encompass the complete ban on employment of asylum seekers contained in s.9(4).
O’Donnell J. recognised that work is connected to the dignity and freedom of the individual which the Constitution seeks to promote. He noted that the Constitution is set on a foundation of the essential equality of the human person, and it guarantees first life and then personal liberty, and freedoms radiating outwards from that.
O’Donnell J. concluded that a right to work at least in the sense of a freedom to work or seek employment is a part of the human personality and accordingly the Article 40.1 requirement that individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens. That then raised the question as to whether legitimate distinctions may be made between citizens and non-citizens, and in particular those whose only connection to the State is that they have made an application for asylum status which has not yet been determined.
The court accepted that there were a number of legitimate considerations justifying a distinction between citizens and non-citizens who are asylum seekers and in particular permitting a policy of restriction on employment, such as the possibility that a right to work might act as a “pull factor” for asylum seekers. The court also accepted that even if some employment was to be permitted after some time, it did not follow that any employment should be permitted: it may be legitimate to limit that to defined areas of the economy, perhaps where there is a demonstrated need.
O’Donnell J. noted that in this case the applicant was in the system for more than eight years, and during that time was prohibited from seeking employment. O’Donnell J. referred to the damage to the individual’s self-worth, and sense of themselves, as exactly the damage which the constitutional right seeks to guard against, and referred to the appellant’s affidavit evidence of depression, frustration and lack of self-belief in that regard.
The Supreme Court held that the absolute, indefinite prohibition on asylum seekers from seeking work was unconstitutional but adjourned the form of order for six months to allow the government and the legislature to consider its response.