The IHREC to appear as amicus curiae in Supreme Court on the rights of a person in Direct Provision

 The Irish Human Rights and Equality Commission (‘the IHREC’) has today been granted liberty by the Supreme Court to appear as an amicus curiae (‘friend of the court’) in proceedings concerning the right of an individual living in direct provision to earn a livelihood.

The proceedings have been brought by a man who has applied to the Minister for Justice and Equality for a declaration of refugee status, and has been living in direct provision for a number of years.

The man concerned was offered employment in the direct provision centre where he resides. He subsequently applied to the Minister for Justice and Equality for permission to work in the State in order to take up this offer of employment. The Minister, however, refused to grant the appellant permission to work, in reliance on section 9(4)(b) of the Refugee Act 1996 (‘the 1996 Act’), 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 the judicial review proceedings currently under appeal before the Supreme Court, the man concerned is seeking a declaration that, if the effect of section 9(4)(b) of the 1996 Act is such as to preclude the Minister for Justice and Equality 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.

He was previously unsuccessful before the High Court and the Court of Appeal, and has been granted leave to appeal to the Supreme Court from the decision of the Court of Appeal pursuant to Article 34.5.3° of the Constitution, which provides for such an appeal where the matter involves a matter of general public importance, or it is necessary in the interests of justice that there be an appeal.  

As the matter is currently before the Supreme Court, the IHREC will make no further comment at this time. The IHREC’s written submissions to the Supreme Court will be made available on www.ihrec.ie after the appeal has been heard.

In a second case today the IHREC was one of five applicants who were refused liberty to appear as amicus curiae in the case of Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (High Court (Commercial) Record No. 2016/4809P). 

Mr Schrems lodged a complaint with the Data Protection Commissioner (the ‘DPC’) challenging the lawfulness of special contractual clauses (‘SCCs’) whereby data is transferred between Facebook Ireland Limited and its US parent company, Facebook Inc.

These SCCs are the subject of EU law (European Commission Decisions[1]), which provide that the existence of such standard clauses in contracts offers adequate safeguards with respect to the protection of privacy when personal data is being transferred out of the European Economic Area.

The DPC considers that she cannot conclude her investigation of Mr Schrems’ complaint without first requesting the High Court to refer certain questions relating to the validity of the SCC Decisions to the Court of Justice of the EU (the ‘CJEU’).

The High Court granted liberty to the following four parties to appear as amicus in this matter: 

  • Business Software Alliance – an international trade association, whose members include leading global technology providers such as Apple, IBM and Microsoft;
  • Digital Europe – a representative body on EU public policy, consisting of 62 of some of the world’s largest IT/telecoms/consumer electroinics companies and 37 national trade associations;
  • Electronic Privacy Information Centre (EPIC) a US based non-governmental organisation with expertise in government surveillance and related legal matters; and
  • The United States of America.

 Five parties were refused leave to appear as amicus – as well as the IHREC they are:

  • Mr Kevin Cahill – an individual applicant with expertise in IT;
  • Electronic Frontier Foundation – a US civil liberties non-governmental organisation focusing on digital technologies;
  • IBEC Ltd; and
  • The Irish Council for Civil Liberties and the American Civil Liberties Union (who sought to make a joint submission). 

Emily Logan, IHREC Chief Commissioner stated: “We note the judgment of the High Court this morning.  The IHREC applied to appear as amicus curiae in this significant case as it raises important issues regarding privacy and the right of individuals to effective remedies should their rights be violated, including outside the European Economic Area (EEA). The IHREC awaits with interest the outcome of these proceedings, and in the meantime will make no further comment as the matter is before the courts.”

 ENDS/

 For further information please contact Niamh Connolly on IHREC 01 8589601/ 087 4399022. Twitter: follow us @_ihrec

 

Notes to editor 

  • The IHREC was established on 1 November 2014 following the merger of the Equality Authority and the Irish Human Rights Commission. 
  • The IHREC’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae before the superior courts in proceedings that involve or are concerned with the human rights or equality rights of any persons. 
  • These two applications are the fifth and sixth occasions on which the IHREC has applied for liberty to appear as an amicus curiae before the superior courts in 2016. 
  • The case of Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems follows the earlier High Court ruling in Schrems v Data Protection Commissioner[2]where Mr Schrems successfully challenged the decision of the DPC not to investigate his complaint that the transfer of his personal data by Facebook Ireland Limited to its parent company in the US, Facebook Inc, was unlawful under data protection law. 

 In that case the High Court referred questions of law to the CJEU.  In October 2015 the CJEU ruled that the EU’s ‘Safe Harbour’ Decision (governing the adequacy of protection for personal data transferred from the EU to the US) was invalid on the basis that it failed to afford EU citizens an effective remedy in respect of the alleged contravention of their data protection and privacy rights, in contravention of the EU Charter of Fundamental Rights (Case-362/14, Schrems v Data Protection Commissioner).  In light of the CJEU’s ruling the High Court quashed the DPC’s decision not to investigate Mr Schrems’ complaint and it remitted the matter to her office for investigation.

 


[1] Commission Decision 2001/497/EC, Commission Decision 2004/915/EC and Commission Decision 2010/87/EU.

 

[2] [2014] IEHC 310.

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