Asylum seeker has no constitutional right to work or earn livelihood in this State

Finlay Geoghegan J: Asylum and Immigration law – employment law – EU law – whether an asylum seeker has an entitlement to work here pending the determination of his application which has been beset with delay – potential offer of employment – temporary permission to reside and work in the State either pursuant to s. 4 of the Immigration Act 2004 or s. 9(11) of the Refugee Act 1996 (as amended) or by exercise of executive discretion – whether the Minister enjoys a discretion under s. 9 of the 1996 Act to grant a work permit to a person in the position of the applicant – whether s. 9(4)(b) of the 1996 Act is repugnant to the Constitution – whether the applicant should be considered as having a personal right to work or earn a livelihood in the State which is protected by Article 40.3 of the Constitution – a person who is in the State for one purpose only namely to have his application for refugee status decided and does not have any right to reside in the State as an immigrant, has a personal right protected by Article 40.3.1 to work or earn a livelihood within the State – trial judge was correct in concluding that the appellant does not have a constitutionally protected personal right to work or earn a livelihood within the State – appeal dismissed.

"I cannot share the view of Hogan J. that the Supreme Court by its judgments in Re. Article 26 and the Electoral (Amendment) Bill [1984] I.R. 268, Re. Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 and Nottinghamshire County Council v. K.B. [2011] IESC 48, [2013] 4 I.R. 662 has “concluded that non-citizens in principle enjoy the rights guaranteed by the fundamental rights provisions of Articles 40 to 44 of the Constitution in much the same general (but perhaps not identical) manner as citizens”. That, in my view, is too broad a proposition. Nor can I agree with the view which he expressed in Omar v. Governor of Cloverhill Prison [2013] IEHC 579, [2013] 4 I.R. 186, in reliance upon the Electoral (Amendment) Bill judgment (and repeats in his judgment herein) that “the Supreme Court has made it clear that the fundamental rights provisions of the Constitution apply without distinction to all persons within the State”.

Hogan J (dissenting): Asylum and Immigration law – employment law – EU law – whether an asylum seeker has an entitlement to work here pending the determination of his application which has been beset with delay – appeal of High Court judicial review of Refugee Appeals Tribunal determination – s. 4 of the Immigration Act 2004 – s. 9(11) of Refugee Act 1996 – Employment Permits Act 2003 – direct provision – Mr. V. was offered employment as a chef in St Patrick’s Accommodation Centre – Article 15 of the EU Charter of Fundamental Rights – whether the Minister enjoys a discretion under s. 9 of the 1996 Act to grant a work permit to a person in the position of the applicant – absolute exclusion from the labour market provided for in s. 9(4)(b) applies to such persons by virtue of s. 9(11) and the Minister enjoys no statutory discretion in the matter – whether the Minister enjoys an inherent discretion to grant the applicant a work permit – Article 28.2 of the Constitution – Minister enjoys no discretion to grant the applicant a permission to enter the labour market by virtue of the exercise of executive power of the State – whether section 9 is in breach of European Union law – Article 11 of Council Directive 2003/9/EC – Council Directive 2013/33/EU – constitutionality of s. 9(4) of the 1996 Act – whether a non-citizen can invoke the right to earn a livelihood – s. 9(4)(b) of the 1996 Act is unconstitutional in its present form – invalidate this sub-section by reason of its constitutional overbreadth – s. 5 of the European Convention of Human Right Act 2003 – whether s. 9(4) of the 1996 Act is incompatible with the State’s ECHR obligations – proper construction of the legislation precludes an asylum seeker engaging in any gainful activity pending the determination of his or her claim – s. 9(4)(b) of the 1996 Act is unconstitutional – appeal allowed.

"I would accordingly grant the applicant a declaration that s. 9(4)(b) of the 1996 Act is unconstitutional in its present form. While, for the reasons I have already stated, I do not think that legislation of this kind is in principle unconstitutional, provided that the periods of exclusion from the labour market are not of indefinite duration capable (as here) of applying for very many years to individuals such as the applicant. Given, however, that the legislation applies in this indefinite fashion, I see no alternative but to invalidate this sub-section by reason of its constitutional overbreadth."