RIGHT TO WORK FOR ASYLUM SEEKERS: RECENT DEVELOPMENTS
The indications by the Supreme Court last year that they would hold the absolute ban on asylum-seekers working as unconstitutional was heralded as a hugely significant and positive change for those seeking asylum in Ireland, and was previously written about in our Blog. Recent developments however indicate that the State proposes to limit this right so that only a small minority of asylum-seekers can actually benefit.
The Supreme Court case of N.H.V -v- Minister for Justice & Equality and Others  IESC 35 was a significant case for a number of reasons. Firstly, the Court held that there was indeed a constitutional right to work under Article 40.3 of the Constitution, with O’Donnell J stating that employment goes to the “essence of human personality. Secondly, it was held that this constitutional right to work is applicable to asylum-seekers, although the Court did limit this slightly by accepting the legitimacy of a potential “pull” factor, and acknowledging that the Oireachtas may limit this right with reference to the Irish economy and other concerns. This affirms that while a right to work has been recognised, it is not on par with the entitlements of Irish citizens.
The Court stated that “in principle” they were willing to hold that 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.”
The Court then went on to state that due to the complex nature of this legal issue that they would remit the issue to the Oireachtas for a period of six months, and that following those six months the Court would invite to make submissions on how best the right to work could be realised.
Minister for Justice, Charlie Flanagan recently announced that Ireland would now opt in to the Reception-Conditions Directive, which provides asylum-seekers in other member-states that have opted in the right to work in certain circumstances. However, opting into the Directive would not be completed by the 9th February, the date on which the Supreme Court will rule the absolute ban on asylum-seekers working as unconstitutional.
As a result, the Government has proposed interim measures prior to the Directive coming into force in Ireland, where asylum-seekers can obtain employment permits to work in the State. These proposed interim measures have been strongly criticised by NGOs, legal professionals and academics. There measures propose that:
• If an asylum-seeker wishes to apply for a job, that job cannot be one that could be taken by an EU citizen or any other person with permission to work in the State.
• Employment that asylum-seekers take up must have a gross annual income of over €30,000.
• Areas of employment that are permitted are extremely restricted, with asylum-seekers not able to engage in healthcare, hospitality, social care, retail and many more.
These restrictions render the right to work of asylum-seekers extremely narrow, and will benefit only a very small number of asylum seekers. The restrictions have been criticised as having a gendered bias against women, with many of the restricted sectors such as social care made up largely of women.
The question remains as to what will become of these proposals once the Directive comes into force. The Dáil recently passed a motion allowing for the Government to opt into the Directive, but no examination or debate was made of the impact of this bill on asylum-seekers’ right to work.
It is worth considering what international best practice is with regard to asylum-seekers right to work. Our nearest neighbour, the United Kingdom, is also heavily criticised for its attitude with regard to asylum-seekers’ right to work, a waiting period of over 12 months before permission is granted, and this permission being granted on a case-by-case basis.
It is proposed that one example of best practice is that of Sweden. Sweden has one of the highest proportion of asylum seekers per thousand inhabitants, with a rate of 8.4 in comparison to the European average of 1.2. In Sweden, asylum-seekers receive a Certificate (AT-UND) which states that they do not need a work permit. Asylum-seekers are entitled to this certificate if:
• They provide proper identity papers or prove their identity in some other way,
• Their asylum application is being considered in Sweden,
• And there are “solid” reasons for their application for asylum.
This is a stark difference to that of the narrow and restrictive requirements to obtain a work permit for asylum-seekers in Ireland, and one which evidences the Irish governments’ attitude to those seeking asylum. While Minister Flanagan commented that individuals in Direct Provision would “soon have access to the labour market will also see their capacity for economic independence enhanced”, it remains to be seen how his Department’s proposals achieve this in any material way.