NHV v Minister for Justice & Equality: A Critique of the Refugee Act 1996 and Direct Provision

Luke Mooney-Foley, 5th Year, Piper’s Hill College

This article is the winning article from the TCLR Secondary Schools Competition 2017-18

This article concerns the Refugee Act 1996 and the judgment of the Supreme Court in NHV v Minister for Justice & Equality,[1] in which it was held that s 9(4) of the Act was unconstitutional, for the reason that it infringed upon the Constitutional right of all persons, irrespective of their citizenship of the State, to work.

Section 9 of the Refugee Act 1996 provides that a person who applied in the State for refugee status is entitled to remain in the State, while their application for refugee status is being considered. Section 9(4)(b) of the Act provides though, that the applicant may 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 for a declaration’. During the period while his or her application is being considered, the applicant is obliged to live in accommodation provided by the State, which is known as Direct Provision. Under this system, applicants for refugee status are also provided with items to satisfy their most basic needs, such as meals, heat, and light.

In NHV, the Applicant challenged the constitutionality of s 9(4)(b) of the Act and argued that the requirement to live in Direct Provision and the associated prohibition on seeking employment was an unconstitutional infringement upon the Applicant's personal rights. The Applicant argued that while he was not a citizen of the State, he was irrespectively entitled to avail of the unenumerated rights provided by art 40.3, including the right to work.

Inasmuch as a person seeking refugee status does not qualify as a citizen of the State, the question is raised of whether a non-citizen may rely on the provisions of the Constitution. This question was considered in the course of NHV. In the judgement of NHV, O'Donnell J considered the legitimate concerns justifying a differentiation of citizens of the state and persons who seek refugee status in the State.

The Respondent maintained that the number of successful asylum seekers is a small minority, with respect to the total number of applicants for refugee status. The Respondent also relied upon the grounds that if a capacity to access the labour market was granted to applicants, there would be a significant upsurge in applications for asylum and that this access to the labour market would provide for difficulties in removing an asylum seeker whose application was determined adversely to their interests.[2]

In his judgement, O'Donnell J also gave respect to the European Union Charter of Fundamental Rights and the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights.[3] Article 15 of the European Union Charter of Fundamental Rights provides, inter alia, that ‘veryone has the right to engage in work and to pursue a freely chosen or accepted occupation’.[4] Moreover, the extract from the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights relied upon by the Applicant maintains that the right to work is intrinsically associated with the realisation of human dignity and the development and recognition of the individual within the community.[5]

After recognising that the entitlement of non-citizens to rely upon the provisions of the Constitution has been inconclusively debated since the case of The State (Nicolaou) v An Bord Uchtála and that no comprehensive or accepted theory regarding the matter has been advanced,[6] O'Donnell J held that the Supreme Court should not reach a decision on the matter by judicial fiat or by reaching a conclusion sub silentio which conformed to the established position whereby non-citizens may rely upon a constitutional provision, where that provision is not substantially associated with the concept of citizenship.[7] O'Donnell J held that persons who were not citizens of Ireland were entitled to avail of Constitutional rights, where those rights concerned their human personality. Moreover, O'Donnell J held that the right to work, in the sense of freedom to work and to seek employment is a right which forms part of the human personality.[8]

In a carefully considered and balanced judgement, O'Donnell J maintained he could not “accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time from asylum seekers’.[9] Appertaining to O'Donnell J's judgement in NHV, it follows that the principal criticisms of the legal provisions of the Refugee Act s 9(4)(b) are the absolute nature of the prohibition of employment conjoined with the undefined period of time that may elapse in processing the application for refugee status in the State and in consequence, the undefined period of the blanket prohibition of employment. In the concluding paragraph of his judgement, O'Donnell J held that ‘in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s 9(4) (and re-enacted in s 16(3)(b) of the 2015 Act) is contrary to the constitutional right to seek employment’.[10]

Bryan McMahon published a report to the Oireachtas wherein recommendations were detailed to address, inter alia, criticisms of s 9(4)(b).[11] McMahon observed the ‘human costs’ associated with s 9(4)(b), including the obsoletion of skills and the creation of dependency.[12]  The report respects that the ban on employment denies the applicant a sense of personal autonomy and an effective control of their own life, while preventing the realisation of the applicant's physical, mental and personal integrity. McMahon hence maintains those applicants in Direct Provision for a time greater than nine months ought to be granted access to the labour market, under the provisions of the European Union Recast Reception Conditions Directive.[13] McMahon also holds that an applicant who is successful in entering the labour market and wishes to remain in Direct Provision ought to be subjected to a means test, in determining a suitable contribution to the services and goods provided to them.[14] Applicants who are successful in entering the labour market would also be obliged to pay incomes taxes, while equally being granted access to social protection schemes.[15]

The judgement of NHV should be held as a judgement of general public importance, with respect to O'Donnell J's decision that non-citizens may be entitled to rely upon the provisions of the Constitution, where those provisions affect the human personality. This judgement may also elicit a further revision of the provisions of s 9(4)(b), which may allow for asylum seekers to have the capacity to pursue a sense of autonomy and societal integration through the labour market.

[1] NHV v Minister for Justice & Equality [2017] IESC 35 (NHV), [2017].

[2] Ibid [18] (O’Donnel J).

[3] Ibid [13], [16].

[4] European Union, ‘Charter of Fundamental Rights of the European Union’ 2012/C 326/02 , art15(1).

[5] UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights’ 16 December 1966, 993 UNTS 3[1].

[6] [1966] IR 567

[7]  NHV (n 1) [11].

[8]  Ibid [17].

[9] Ibid [19].

[10] Ibid [21].

[11] 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 (2015).

[12] Ibid [5.43].

[13] Ibid [5.51].

[14] Ibid [5.49.3].

[15] Ibid [5.52].

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