Commission Exercised Role as Amicus Curiae in Landmark Case
The Irish Human Rights and Equality Commission (the ‘Commission’) which has since 2016 exercised its function as amicus curiae (friend of the court) in the landmark Supreme Court case on the right of an individual living in direct provision to earn a livelihood, has welcomed today’s final declaration of the Court that the provision in current legislation is unconstitutional, and no longer forms part of Irish law.
As Ireland’s national human rights institution and national equality body, the Commission will be seeking an engagement with both Government and Oireachtas on the conditions of access to employment.
As amicus curiae the Commission’s core submission to the Supreme Court was that non-citizens, including those seeking asylum or subsidiary protection, are entitled to invoke the right to work or earn a livelihood guaranteed under article 40.3.1 of the Constitution.
In its submissions to the Supreme Court, the Commission stated that the denial of a right to work for asylum seekers “has a severe impact, particularly for those who have been in the asylum process for lengthy periods of time.”
The Commission, following today’s final ruling, will in the first instance seek a meeting with the Minister for Justice and Equality to emphasise that new measures need to be inclusive and universal, and do not create conditions likely to give rise to exploitation.
The Commission will also seek an early date to address the Oireachtas Joint Committee on Justice and Equality on the matter.
In its May 2017 judgment in the case of NHV v Minister for Justice and Equality, the Supreme Court held that, in circumstances where there is no time limit on the asylum process, then the absolute prohibition on seeking employment under the Refugee Act 1996 is contrary to the constitutional right to seek employment.
The case was also significant, as by the time of the hearing, the Burmese national at the centre of the case had subsequently been granted refugee status, however the Supreme Court decided to proceed stating that: “this case is plainly a test case supported as it is by the Irish Human Rights and Equality Commission, and therefore, the circumstances will recur. It is probably desirable that it should be dealt with now rather that to wait for another case to make its way through the legal system.”
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“The Commission welcomes this final ruling, and is clear that the threat to human dignity posed by being deprived of any opportunity to engage in employment is not abstract or theoretical for people in direct provision. The right to work is essential for realising other human rights and forms an inseparable and inherent part of human dignity.
“The Irish Human Rights and Equality Commission, as Ireland’s national human rights institution is seeking to engage directly with Government and Oireachtas Members to ensure an effective and enduring right to work under the Constitution is put in place.”
ENDS/
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Brian Dawson, IHREC Communications Manager,
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Editor’s Note
Supreme Court ruling in NHV v Minister for Justice and Equality
The Irish Human Rights and Equality Commission’s written submissions as amicus curiae to the Supreme Court are available at the following link:
https://www.ihrec.ie/documents/nhv-v-minister-justice-equality-july-2016/
The proceedings were brought by a Burmese national who had been living in direct provision for several years and was offered work in the direct provision centre in which he resided. On application to the State for permission to take up this employment, the Minister for Justice and Equality refused to grant permission to work based on section 9(4)(b) of the Refugee Act 1996 which provides that an applicant for a declaration of refugee status shall not ‘seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application […]’.
The Court found that, in principle, a non-citizen, including an asylum seeker, may be entitled to invoke the personal rights under the Constitution, including possibly the right to work, if it can be established that to do otherwise would fail to hold such a person equal as a human person. It noted that ‘work is connected to the dignity and freedom of the individual’ something which the Constitution seeks to promote.
The Court went on to consider the nature of the right to work and how it might apply to non-citizens citing the Constitution, the EU Charter of Fundamental Rights, and the recommendations of the UN Committee on Economic Social and Cultural Rights. The Court concluded that a right to work, at least in the sense of a freedom to work or seek employment, is a part of the human personality that cannot be withheld absolutely from non-citizens.
The amicus curiae function of the Irish Human Rights and Equality Commission.
The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.
Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.