Irish Supreme Court: asylum work ban unconstitutional

The Irish Supreme Court have found that “in principle” the ban in the Refugee Act on asylum seekers seeking employment is contrary to the constitutional right to seek employment.

The appeal was taken by a Burmese man who was unable to take paid employment during the eight years it took to be granted refugee status. Instead he lived on the weekly direct provision allowance of €19. An Irish Times article explains:

… he suffered depression, “almost complete loss of autonomy” and being allowed work was vital to his development, personal dignity and “sense of self worth”.

The Department of Justice reacted to the decision saying that it was “clearly an important judgment, which may have significant implications for our asylum process”.

The Supreme Court’s decision is likely to have major implications on other asylum seekers in Ireland. An RTE report quotes the Irish Refugee Council’s chief executive Nick Henderson:

“This ban has been in place since 1996, over 20 years, so today represents a huge breakthrough in protecting the very basic and fundamental of rights of people seeking protection in Ireland.”

He added that there are over 3,500 people in direct provision cannot work while they await decisions on their cases. Allowing them to work “makes good common economic sense”.

The seven judges in the Supreme Court unanimously found in favour of the Burmese man. The matter has now been adjourned for six months to allow the legislature to decide how one or more statutory provisions could be altered to remedy the situation in law.

The Irish Times article explains that while the state could legitimately have a policy of restricting employment of asylum seekers, the current Refugee Act removed the right altogether.

While the State can legitimately have a policy of restricting employment of asylum seekers, Section 9.4 of the Refugee Act does “not just severely limit” the right to seek work for asylum seekers, but “removes it altogether”, [Mr Justice Donal O’Donnell] said.

If there is no limit on the time for processing an asylum application, that could amount to an absolute prohibition on employment, no matter how long a person was within the system, he said …

“The point has been reached when it cannot be said the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment,” he said.

“This damage to the individual’s’ self worth and sense of themselves, is exactly the damage which the constitutional right [to seek employment] seeks to guard against.”

The evidence from the man of the depression, frustration and lack of self-belief at being unable to work “bears this out”, he added.