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Ireland / Supreme Court / [2017] IESC 35

N.H.V. v Minister for Justice & Equality and ors

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Type:
Decision
Decision date:
30/05/2018

Key facts of the case: 

The case concerned the right of asylum seekers to work in Ireland. ‘Direct provision’ is the system which applies to asylum seekers while their applications for refugee status are being processed, whereby the State provides accommodation and food to the applicants. The appellant in this case, is a native of Burma who arrived in Ireland on the 16th July 2008, and applied for refugee status the following day. His application was refused at first instance and on appeal by the Refugee Appeals Tribunal in 2009. That decision was challenged and quashed on judicial review in July 2013. Thereafter, the applicant was obliged to begin a new application. This resulted in a further refusal which was upheld by the Refugee Appeals Tribunal in November 2013. That decision was however quashed on consent in February 2014, and accordingly the process was required to be recommenced.

 At that point, the appellant had been in Direct Provision for almost six years and faced a further significant delay before his application was finalised. During this time, the appellant has been living in Direct Provision in County Monaghan. In May 2013, he was offered employment in the Direct Provision facility. However, Section 9(4) of the Refugee Act 1996 provides that an applicant shall not seek or enter employment before final determination of his or her application for a declaration. He, therefore, applied to the Minister for Justice for permission to take up the offer of employment. The Minister refused on the grounds that such employment was precluded by Section 9(4). Accordingly, the appellant commenced these proceedings seeking to challenge that interpretation of s.9(4) and/or to seek a declaration of the incompatibility of s.9(4) with the Charter of the European Union, the European Convention on Human Rights, and the Constitution. The High Court dismissed his claim and this decision was upheld by the Court of Appeal. The appellant is now appealing to the Supreme Court.

The case concerned Section 9(4) of the Refugee Act 1996 and sought clarification of its interpretation in light of the Charter of the European Convention on Human Rights and the Irish Constitution.

Outcome of the case:

In principle, the Court held that in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, the Court adjourned consideration of the order the Court should make for a period of six months and invited the parties to make submissions on the form of the order in the light of circumstances then obtaining.