Article 7 - Respect for private and family life
Article 15 - Freedom to choose an occupation and right to engage in work
Article 51 - Field of application
Article 52 - Scope and interpretation
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  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  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.
36. The applicants contend that if s. 9 of the Refugee Act 1996, (as amended) prohibits the respondents from considering or granting an asylum seeker permission to work in the state, it is incompatible with European Union law and the Charter of Fundamental Rights because it prohibits the respondent from considering the claimed negative effects which the ban on working has on the applicants, which has been compounded by the delay involved in considering their applications.
Furthermore, it is claimed that the provisions of s. 9, as applied by the respondent, has insufficient or no regard for the possibility that the applicants may obtain a declaration of refugee status or subsidiary protection. It is submitted that Irish law fails to recognise the essence of the right to work and/or is a measure which is disproportionate and unnecessary and does not genuinely meet the objective of and need to protect fundamental rights recognised by the Union. The applicants rely on the following rights under the Charter: Articles 7, 15, 18, 51 and 52.
37. It is submitted that Article 15(1) of the Charter applies to all persons and is not restricted to citizens of the Union. In addition, it is submitted that an automatic and permanent ban on the applicant taking up employment in the State, whatever his circumstances as a refugee applicant now or in the future manifestly fails to “respect the essence” of the applicant's right to work, and fails to meet any “objective of general interest recognised by the Union”. Furthermore, it is claimed that because the European Union has recognised the need to permit refugee applicants to work after a certain period of time if their application has not been finalised under Directive 2003/9/EC, the absolute and permanent nature of the denial of the right to work to asylum seekers under s. 9 is disproportionate.
38. In Ymeraga & Ors v. Ministre du Travail de l'Emploi et de l'Immigration (Case C-87/12, 8th May, 2013) the CJEU (2nd Chamber) reaffirmed that the fundamental rights set out in the Charter are addressed to the member states only when implementing European Union law. Under Article 51(2) the Charter does not extend the field of application of European Union law beyond the power of the Union and does not establish any new power or task for the Union or modify powers and tasks as defined in the Treaties. In order to ascertain whether a decision, in this instance, to refuse to consider or grant permission to the applicants to work in the state involves the implementation of European Union law within the meaning of Article 51.
39. In support of the submission concerning the application of rights under the Charter, the applicants rely (under Article 52(7)) upon “explanations relating to the Charter” concerning Article 15(1) as follows:- “Freedom to choose an occupation, as enshrined in Article 15(1) is recognised in Court of Justice case law (see, inter alia , judgment of 14th May, 1974, Case/473 Nold ECR 491 , paras. 12 – 14 of the grounds; judgment of 13th December, 1975, Case 44/79 Houer ECR 3727 ; judgment of 8th October, 1986, Case 234/85 Keller ECR 2897 , para. 8 of the grounds).
Article 15(1) of Council Directive 2013/33/EU reformulated the entitlements of asylum seekers in that participating member states were now obliged to ensure that applicants for asylum have access to the labour market no later than nine months from the date when the application for international protection was lodged if a first instance decision by a competent authority had not been taken, and the delay could not be attributed to the applicant. Applicants must be granted “effective access” to the labour market, but the member states retain the right to determine the conditions upon which access would be permitted. Ireland also decided not to participate in this Directive in accordance with Article 1 of the Protocol. In that regard, the State was entitled not to participate and become subject to the terms of the Directive and it follows that the State could not be said to be “implementing European law” in relation to any obligation said to arise under either Directive. Furthermore, it is clear from the terms of both Directives if adopted and implemented, that the provisions in respect of employment of asylum seekers fall far short of the general right to work asserted by the applicants in this case as arising under the Charter.
44. In Fariborz Rostami v. The Secretary of State for the Home Department  EWHC 1494 , Hickinbottom J. (High Court, Queens Bench Division) having outlined and adopted the well established principle that a state has a right to protect its citizens' right of access to the labour market and to restrict the ability of non-nationals to enter the market (from which it follows that a non-national has no right to have an opportunity to work at all or on any particular basis), considered the scope and application of Article 15 of the Charter.
46. I am, therefore, satisfied that the applicants are not entitled to a right to work or access to the Irish labour market as asylum seekers pursuant to the Directives cited or the Charter of Fundamental Rights. Ireland did not participate and, in effect, opted out of the two Directives invoked in accordance with its Treaty entitlements. In the circumstances the provisions of Articles 51 and 52 of the Charter have no application. I am satisfied that the provisions of s. 9 as interpreted by the court fulfil the State's obligations pursuant to the Geneva Convention and the provisions of European Union law.
54. But leaving that general point to one side, it is clear from Article 15(2) and (3) that Article 15(1) does not confer a right to work on everyone, in the sense of all individuals who happen to be within the territories of the EU at a particular time. Article 15(1) cannot be considered in a vacuum. Article 15(2) provides that every citizen of the EU has the right to seek employment and to work in any member state, a right which presumes that there is no wider right to work or access to the labour market, available to EU and non-EU citizens. Article 15(3) also presumes that, to work, those who are not EU citizens require authorisation outside the Charter itself. Despite the use of the word “everyone” in Article 15(1), far from conferring a general right to work on all who happen to be in EU territories at any time, in terms of the right to engage the labour market, Article 15 draws a fundamental distinction between citizens of the EU on the one hand and those who are not such citizens on the other; and its objective, patently, is to recognise that EU citizens have the freedom or right to seek employment and to work, but not to recognise that same freedom or right in non EU citizens. It is perhaps worthy of note that Mr. Wilson (for the applicant) did not contend that Article 15 gave a failed asylum seeker any right to work.