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Ireland / High Court / [2015] IEHC 246

N.H.V. and F.T. v The Minister for Justice and Equality and the Irish Human Rights Commission

Policy area:
Asylum and migration
Deciding Body type:
National Court/Tribunal
Deciding Body:
High Court
Decision date:

Key facts of the case:

Mr V is a Burmese national. He arrived in Ireland in July 2008 and applied for refugee status the following day. On 25th November 2008, he attended the interview with the Office of the Refugee Applications Commissioner (ORAC) and received a negative recommendation in respect of his application for asylum on 22nd December. His appeal hearing before the Refugee Appeals Tribunal took place on 26th May 2009, following which a negative recommendation was made in July 2009. The Judicial Review proceedings were issued and the decision was quashed on 16th July 2013. Following this determination, the applicant was obliged to re-enter the process and re-attend the Tribunal for a fresh hearing which, he fears, could take many years to reach a conclusion. Should the outcome be negative, his intention is then to apply for subsidiary protection which could also take several years. Mr V expresses distress and demoralisation at being obliged to remain in the ‘Direct Provision’ system (the system which deals with asylum seekers in Ireland) living on €19 per week which is the amoung given by the government to adult asylum seekers. He experiences insomnia and deteriorating health because of his accommodation and feels depressed because he is prevented from engaging in meaningful employment. He fears that it could take up to 10 years to complete his engagement with the protection process and that taking up employment would transform his existence. He had been offered a job as a chef. However asylum seekers do not have the right to work in Ireland under the Refugee Act 1996 (as amended). His solicitor had written to the Department of Justice twice requesting that he be allowed to reside and work in Ireland while his protection application was being determined but this was refused. Mr T is a national of Cameroon. He arrived in Ireland on 24th April 2008 and applied for asylum. On 4th September 2008 he received a negative recommendation from ORAC and appealed to the Refugee Appeals Tribunal. This appeal was refused on 5th July 2009 and a leave to apply for judicial review was sought. On 18th April 2013, the Tribunal decision was quashed in the High Court and the matter was remitted back to the Tribunal for rehearing. No date or time-frame has been fixed for this process. He has been offered a job as a gym instructor. If precluded from working, Mr T is obliged to remain in the direct provision hostel accommodation where he has been for the last 5 years in receipt of €19 per week. He emphasises that this is a difficult and demoralising situation. His solicitor had written a number of times to the Department of Justice requesting leave to work on a temporary basis which was refused. The applicants claim that the Refugee Act 1996 (as amended) does not preclude the respondent from granting permission to a refugee applicant to take up employment but imposes an obligation on a refugee not to seek or enter employment unless he obtains permission to take up such employment which may be granted outside the terms of the Act. They claim that s. 9 (11) of the Act expressly provides that the employment restriction may be waived by the granting of an alternative permission to a refugee applicant to remain in the State. They submit that a temporary residence permission under s. 4 of the Immigration Act 2004 might be granted to a refugee applicant and / or that the respondent is vested with executive discretion such as that granted to foreign nationals to reside and work in the State under the IBC/05 Scheme as discussed in Bode v. Minister for Justice Equality and Law Reform [2008] 3 I.R. 663. The applicants claimed that as asylum seekers they had a right to work or earn a livelihood which was guaranteed under Art. 40.3 of the Constitution and Art. 8 of the European Convention on Human Rights. The applicants claimed that s. 9 of the Refugee Act 1996, (as amended) did not preclude the respondent from granting permission to a refugee applicant to take up employment. The applicants claimed that it was incompatible with European Union law and Article 7 and 15 the Charter.

Outcome of the case:

The Court held that the applications for an order granting permission to work in the State would be refused. The Court stated that Article 40.3 of the Constitution did not afford such a right. As for the law governing the presence of a non-nationals in the State, the provisions of the Refugee Act 1996 (as amended) prevails over other regulations. Adopting the principle propounded in the judgment of the High Court in Fariborz Rostami v. The Secretary of State for the Home Department [2013] EWHC 1494, the Court held that unlike EU citizens, the non EU citizens did not have the freedom or right to seek employment and to work and also held that the Charter patently recognised the right in favour of EU citizens.