Direct Provision: the implications of N.H.V. v Minister for Justice and Equality

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Marie O’ReillyJF Law

 

“Work offers dignity and the best means of integration, and reduces the cost to the State”

-A person living in Direct Provision expressing their desire to work[1]

 

 

 

Introduction

 

On May 30th, 2017, the Supreme Court ruled in favour of a Burmese man’s appeal over the blanket ban preventing asylum seekers to work or seek entrance to the labour market. This judgment, N.H.V. v Minister for Justice and Equality, represents a revolutionary but long overdue departure from the current legislative positions. This article will outline the relevant legislation currently outlawing asylum seekers from working and argue that access to employment is a basic human right. It will examine the landmark case of N.H.V. v Minister for Justice and Equality, before setting out how the legislation currently being drafted is likely to be implemented. Finally, this article will critically analyse other attempted reforms to the asylum system, including Direct Provision, before concluding that this ruling is but the first step towards a fair and just system for migrants with pending asylum applications.

 

 

Current Legislation

 

The prohibition on employment is enforced by virtue of section 9(4) of the Refugee Act 1996 whereby an applicant shall not “seek or enter employment or carry on any business, trade or profession” before a decision is made with regards to their immigration application.[2] This legislation was reinforced with the promulgation of the International Protection Act 2015 which expressly prohibits the seeking of or entering employment under section 16(3)(b).[3]

Ireland and Lithuania are currently the only two EU member states, which unequivocally prohibit employment during the asylum procedure notwithstanding the duration of time spent awaiting a verdict on their application.[4]

 

 

Basic Human Right

 

Access to the labour market is intrinsic to personal freedom, self-determination, and human dignity, while the adverse consequences of prohibition from employment are innumerable. This interdiction engenders self-depreciation, stagnation, and social exclusion. The prolongation of prevention from access to the labour market can cause an individual’s skills to become obsolete or can result in a lack of confidence and sense of worthiness which act as further barriers to gaining employment when the prohibition is revoked. The HSE has conducted qualitative research into the negative impacts of denying employment to individuals living in Direct Provision, and ascertained a positive correlation between prolonged idleness, which is a concomitant to unemployment, and mental health and psychological problems.[5]

 

Accordingly, the right to work appears as a fundamental human right in the framework of many international agreements such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter, and relevant International Labour Organisation Conventions.[6] For example, Article 23(1) of the UDHR states that “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”[7] Ireland’s current blanket ban on the right of asylum seekers to work or seek employment  therefore appears to be  in breach of these international agreements.

 

The Irish Constitution acknowledges that people living in Ireland have certain fundamental personal rights, not all of which are expressly stated in the Constitution, but may be implied or derived from it.[8] Indeed, it was in finding that the interdiction was “in principle” unconstitutional that the Supreme Court unanimously ruled in favour of the Applicant in the N.H.V. case, in relation to the outright ban on the right of asylum seekers to work while their immigration applications are pending.

 

N.H.V. v Minister for Justice and Equality

 

The applicant in this case, a Burmese citizen, arrived in the State on July 16th, 2008, and made an application for refugee status the following day. In 2009, his application was rejected at first instance, and again on appeal by the Refugee Appeals Tribunal. The challenge to this decision failed in judicial review proceedings in July 2013 and again in February 2014.[9]

 

In 2013, the applicant received an offer of employment and applied to the Minister for Justice and Equality for permission to accept the offer. The Minister refused to grant permission, stating that he was precluded from doing so under section 9(4) of the Refugee Act 1996. N.H.V. then instituted proceedings in the High Court, challenging the interpretation of section 9(4), and pursuing a declaration of the incompatibility of the section with the Charter of the European Union, the European Convention on Human Rights, and the Irish Constitution.[10]

 

The Supreme Court found that, as the current asylum processing system has no statutory time limit for an application to be decided upon, the “absolute prohibition” on asylum seekers to seek access to the labour market is contradictory to the constitutional right to attempt to obtain employment.[11]

 

The judgment centred on the degree to which non-citizens, as “human persons,” are eligible for protection under constitutional rights. O’Donnell J distinguished between constitutional rights attached to citizenship, such as the right to vote, and rights that all those in the state, notwithstanding their immigration status, are free to avail of as “human persons.”[12] He stated in his judgment that the freedom to work, or seek employment, is an innate “part of the human personality.”[13]He continued that under the court’s interpretation of Article 40.1 of the Constitution, aspects of rights which were part of the human personality could not be indefinitely precluded from non-citizens, and held that the right to work was an unenumerated right derived from the Constitution, and therefore could be enjoyed by non-citizens.[14]

 

 

Implementation of new legislation

 

This landmark judgment concluded with the court confirming adjournment from making any formal orders for a period of six months to allow the enactment of new legislation by the legislature, who would have to decide how to address the situation.[15] The judgment was delivered on May 30th 2017, exactly six months to date, and the declaration of a new order in relation to this issue is eagerly anticipated.

 

The government has been urged by many lobbyists and working groups that the best way to proceed is to align Ireland’s asylum system with other Member States as a member of the Common European Asylum System. It could efficiently do so by opting in to the recast Reception Conditions Directive which sets minimum standards for the reception of asylum seekers.[16] This Directive recommends that asylum seekers be granted access to the labour market after a maximum period of nine months without first instance determination on their refugee or subsidiary protection applications,[17] where the delay is not attributed to the applicant. Member States implement the Directive in a discretionary manner; several States affix restrictions to the right to work,[18] while other member states permit employment before the nine month benchmark- such as Greece and Sweden, which accord immediate labour market entrance to asylum seekers, and Germany, where the right to employment is acquired two months subsequent to submission of an application for refugee or subsidiary protection status.[19]

 

The Irish Refugee Council has recommended in their policy paper regarding the right to work for international applicants that access to the labour market for asylum seekers should be granted no longer than six months after an application is submitted to the IPO. This proposed timescale is deduced from the fact that it is the same period after which an asylum seeker may request information from the IPO as to when a recommendation will be made on their application, under Section 39 (5) of the International Protection Act 2015.[20] The UNHCR also endorses this recommended six-month benchmark.

Conditions and Restrictions

 

The IRC has also called for no conditions or restrictions to be attached to the right to work “such as restricting it to particular professions or sectors or that people cannot be self-employed.”[21] Nevertheless, it has already become apparent that the right of asylum seekers to enter the labour market will be impeded by a number of limitations administered by the government.

 

It is probable that access to work will only be permitted in certain “restricted sectors of employment.”[22] A government spokesperson attempted to repudiate claims that such an action would be discriminatory by highlighting the current “relatively low” level of unemployment in Ireland in an endeavour to justify the government’s alleged plans to only permit access to work in areas where there are increasing levels of unemployment.[23] This would assuredly signify severely limited, if not unattainable access to sectors such as health. While the Supreme Court ruling in N.H.V. v Minister for Justice and Equality found the right to work an integral part of human dignity and freedom under the Constitution, these restrictions would infringe, yet again, on these unenumerated rights.

 

Furthermore, regardless of an asylum seeker’s work status, they will remain obliged to stay in Direct Provision.[24] This will pose an additional array of difficulties, in that employment will have to be secured a reasonable distance from Direct Provision residences.

 

 

Other Reforms to the Asylum System

It is widely acknowledged that applications for international protection in Ireland are subject to a severe processing delay, spanning months and even years. The paramount factor for this backlog was the split system in processing applications[25], but this was reformed earlier this year, on January 3rd, with the promulgation of the “single procedure” under the International Protection Act 2015. This new legislation permits applications for refugee status and subsidiary protection in one application, with the intention of drastically reducing the time spent by asylum seekers in Direct Provision.[26] While the UNHCR has welcomed the approach, it must be acknowledged that it will take a while for the system to be effectively applied retrospectively, taking a considerable amount of time to clear the backlog of applications.

 

 

C.A and T.A. (a minor) v Minister for Justice and Equality

The living conditions in Direct Provision centres have been a topic of controversy since their establishment in April 2000. The inhabitants are given a meagre weekly allowance of only €19.10 a month, an amount which has remained unchanged over seventeen years despite recommendations from a number of working groups.[27]

 

In 2014, C.A. and T.A. (a minor) v Minister for Justice and Equality saw a challenge to the Direct Provision System on a number of grounds. The applicants were successful in several of their claims: some of the house rules of Direct Provision centres including unannounced room inspections, monitoring of presence, requirement to notify intended absences and rules against having guests in bedrooms, and the complaints handling procedure were declared unlawful.[28] The Irish Immigrant Support Centre expressed their disappointment that the paltry weekly payment, and the operation of Direct Provision as a whole were not deemed unlawful.[29]

 

Interestingly, Mr Justice Colm McEochaidh said that while the applicant’s claim was “doomed”, it was not because the proposition that Direct Proposition was in breach of Human Rights was false, but because the applicants had failed to provide oral evidence and had not cross-examined the witnesses for the opposition.[30]

 

 

Conclusion

The current system is undoubtedly fundamentally flawed, but with several aspects of Direct Provision declared unlawful in recent years, a departure from the “multi-layered” process, and new legislation presently being enacted to grant asylum seekers access to the labour market, it finally appears as though the Irish Government has realised the system is in need of reform. Although major alterations are still required, these may act as a prerequisite for further actions. The order due to be delivered will have major implications for those currently living in Direct Provision. An equitable, more just system is eagerly anticipated by asylum-seekers and human rights advocates alike.

[1] ‘Government must opt into EU Directive on asylum seekers’ The Irish Times https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[2] Refugee Act, 1996 http://www.irishstatutebook.ie/eli/1996/act/17/enacted/en/print.html

[3] Human Rights in Ireland- Asylum seekers and the right to work: The Supreme Court Decision http://humanrights.ie/economic-rights/asylum-seekers-and-the-right-to-work-the-supreme-court-decision/

[4] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[5] Ibid

[6] Ibid

[7] Universal Declaration of Human Rights http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[8] Citizen’s Information- Fundamental Rights under the Irish Constitution http://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_fundamental_rights.html

[9] N.H.V v Minister for Justice and Equality and ors [2017] IESC 35 http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/bba87f6e90ea3c5d80258130004199fe?OpenDocument

[10] Ibid

[11] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[12] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[13] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[14] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[15] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[16] https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[17] http://humanrights.ie/immigration/direct-provision-still-under-the-spotlight/

[18] Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers Final Report June 2015 http://www.justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf

[19] Irish Refugee Council Policy Paper: The Right To Work For International Protection Applicants July 2017 http://www.irishrefugeecouncil.ie/wp-content/uploads/2017/07/IRC-Right-to-Work-Policy-Paper-30.06.17.pdf

[20] Ibid

[21] Ibid

[22] https://www.irishtimes.com/news/social-affairs/ministers-to-approve-work-rights-for-asylum-seekers-1.3278384

[23] http://www.thejournal.ie/asylum-seekers-work-3709670-Nov2017/

[24] Ibid

[25] Irish Refugee Council Proposal: Proposal For A One-Off Scheme To Clear The Backlog Of People In The Protection Process Before The Introduction Of A Single Protection Procedure http://www.irishrefugeecouncil.ie/wp-content/uploads/2014/12/PROPOSAL.pdf

[26] Rule change should lead to less time in Direct Provision Centres for asylum seekers http://www.thejournal.ie/asylum-seekers-system-3168088-Jan2017/

[27] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[28] http://humanrights.ie/tag/c-a-and-t-a-a-minor-v-minister-for-justice-and-equality/

[29] Direct Provision is legal, but some of its rules are not, says High Court https://www.independent.ie/irish-news/courts/direct-provision-system-is-legal-but-some-of-its-rules-are-not-says-high-court-30746605.html

[30] Mother and Son lose challenge against Ireland’s Direct Provision for asylum seekers https://www.independent.ie/irish-news/courts/mother-and-son-lose-challenge-against-irelands-direct-provision-for-asylum-seekers-30744915.html

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