The Irish Human Rights and Equality Commission (the ‘Commission’) welcomes today’s decision by the Supreme Court in the case of NHV v Minister for Justice and Equality on the right of an individual living in direct provision to earn a livelihood. Describing the case as a test case, the Supreme Court ruled 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.
As amicus curiae (friend of the court), the Commission’s core submission 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.
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 […]’.
In his judicial review proceedings, appealed to the Supreme Court, the man concerned sought a declaration that, if the effect of the Refugee Act 1996 is to preclude the Minister from granting permission to him to take up employment, this section is repugnant to the relevant provisions of the Constitution and the European Convention on Human Rights. The man was granted leave to bring the appeal to the Supreme Court as it was decided that the matter is one of public importance under article 34.5.3 of the Constitution.
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.
Noting that this situation could be resolved by changing the relevant statutory provisions, which is primarily a matter for government and parliament, the Court adjourned the matter for 6 months and invited the parties to make submissions on the form of the court order to be made at that time.
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, welcomed today’s ruling stating:
“The Irish Human Rights and Equality Commission, as Ireland’s National human rights institution and equality body applied to appear as amicus curiae in this significant case involving the right to work of people seeking international protection in Ireland, as it raised important issues regarding the constitutional rights and human rights of people to earn a livelihood.
“As the Supreme Court acknowledged in this case, 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. While it was originally envisaged that a person would remain in the Direct Provision system on a short-term basis the reality is that delays in asylum adjudication process means stays in Direct Provision centres have become considerably longer.
I welcome today’s ruling and strongly recommend, as stated previously in our 2014 Policy Statement on Direct Provision, that strong consideration be given to allowing Direct Provision residents to work and that Direct Provision residents over the age of 18 receive education and training in preparation for seeking employment, once they leave the system”
ENDS/
For further information, please contact:
Síle Murphy Q4PR – sile@q4pr.ie
Phone: 01 475 1444 / 086 0288132
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Editor’s Note
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 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 was set up on 1 November 2014 as an independent public body to protect and promote human rights and equality in Ireland and build a culture of respect for human rights, equality and intercultural understanding across Irish society.
The Irish Human Rights and Equality Act 2014 states that the Commission shall exercise its functions with a view to ensuring that:
- there is respect for, and protection of, everyone’s human rights;
- there is respect for the dignity and worth of each person;
- a person’s ability to achieve their potential is not limited by prejudice, discrimination, or neglect;
- everyone has a fair and equal opportunity to take part in the economic, political, social or cultural life of the State; and
- people respect each other, respect equality and human rights, and understand the value of diversity within society
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.