Supreme Court to declare next year that ban on asylum seekers' right to work is unconstitional

The court on May 30 last unanimously held that the ban was “in principle” unconstitutional but deferred making a formal declaration for six months to allow the legislature address the situation.

When the case returned to the court today exactly six months after the May 30 judgment, the State asked the court for a further deferral to March next.

Nuala Butler, SC for the State, said the State is in the process of opting into the EC Reception Directive, which contains a provision requiring member states to afford the right to work in certain circumstances, but the matter was complex with many issues requiring to be addressed.

She urged the court not to make a formal declaration of unconstitutionality today, saying that would lead to a “flood” of applications seeking permission to work. Most of those would be rejected but it would take considerable administrative time to process them, she said.

Michael Lynn SC, for the Rohingya man who brought the successful challenge to the ban, said his side would prefer a declaration was made today, but did not want to create “unnecessary obstacles” and the issue was for the court to decide.

After adjourning to consider the matter, the Chief Justice, Mr Justice Frank Clarke, said the court had already given judgment in this matter and ruled , in certain respects, the absolute ban is inconsistent with the Constitution.

The court last May had “exceptionally” not taken the normal course of immediately declaring the provisions to be unconstitutional, thus rendering them void and of no legal effect.

Instead, the court recognised there were choices to be made as to how the difficulty identified was to be addressed and the first port of call for those choices was the legislature.

The Chief Justice said the court “strongly emphasises”, on finding a measure to be unconstitutional, the normal position is the court must immediately declare it to be so and thereby render it inoperative. The court has not yet had to consider the parameters of the circumstances leading to a departure from that general rule and to deferral of a declaration of unconstitutionality.

Such circumstances must necessarily be “exceptional” and the court had identified this case as one where such circumstances did arise. However, the court also put a limitation on appropriate scope of further interaction between the court and the parties.

While it appreciated the State was not asking the court to involve itself in approving the choices made, the whole point of giving the State a time period was to allow the legislature make decisions and the court had no role in those.

The essential issue now was to decide what is appropriate for the court to do when the State has said a decision on how to address the matter has been made and plans are afoot to take the necessary measures so Ireland will opt into the Reception Directive.

He said the court appreciates the State has taken measures to use the time given to it, but the court did not want to get involved in even monitoring the speed of developments.

The “balance of justice” would be met by affording the State a “relatively brief” period to take whatever measures the State considers necessary, he said.

The court envisaged no further hearing concerning the matter and its intention was to make a formal declaration on February 9, he stressed.

The Rohingya man, aged in his thirties, spent eight years in Direct Provision before getting refugee status here last year. While offered work in his Direct Provision centre in 2013, he could not take that up due to the ban on seeking work.

While in Direct Provision on a €19 weekly allowance, he suffered depression and "almost complete loss of autonomy", he said. Being allowed to work was vital to his development, personal dignity and "sense of self worth".

The Supreme Court found “in principle”, and where there is no statutory time limit for processing asylum applications, the "absolute prohibition" on asylum seekers seeking employment in the 1996 Refugee Act, and continued in the International Protection Act 2015, is contrary to the constitutional right to seek employment.

The judgment focussed on the extent of the entitlement of non-citizens, "as human persons", to rely on constitutional rights.

The case, brought against the Minister for Justice with the Attorney General and Irish Human Rights and Equality Commission as notice parties, raised important legal issues and the Commission had described it as a "test" case.