Judges consider asylum seekers’ right to work

A seven-judge Supreme Court is hearing an important appeal concerning asylum seekers’ right to work.

The appeal is by a Burmese man who lived in Direct Provision for more than eight years before getting refugee status. The case is against the Minister for Justice, with the Attorney General and Irish Human Rights and Equality Commission as notice parties.

The man argued that, while living in Direct Provision on a €19 weekly allowance, he suffered depression and “almost complete loss of autonomy” and being allowed work was vital to his development, personal dignity, and “sense of self-worth”.

After coming here in late 2008, he was refused refugee status but appealed. After the High Court found errors in how his applications were decided, rehearings were held before the Refugee Appeals Tribunal, which last September granted him refugee status.

This means he can now legitimately seek work here. The State says the Supreme Court should therefore dismiss as pointless his appeal against the Court of Appeal’s 2/1 rejection of his case.

When the appeal opened yesterday, Michael Lynn SC, for the Burmese man, urged the court not to declare the case moot but instead decide the core issues. He argued that the Minister for Justice has discretion to let asylum seekers in a position similar to the man work, including on a temporary basis.

Counsel disputed the Minister’s claims that that could act as an incentive for others to enter the State. No “sane person” would want to live in Direct Provision for more than eight years, he said.

Feichin McDonagh SC, for the Commission, argued that the Minister has discretion to permit an asylum seeker to work and there is no “absolute” legal bar on the Minister doing so.

Opposing the appeal, Nuala Butler SC, for the Minister, argued a non-Irish national present in the State on a conditional basis has no constitutional right to work.

In exchanges with counsel, some of the judges asked why, if asylum seekers have constitutional rights including the right to bodily integrity and fair trial, they have no right to work.

Ms Butler said asylum seekers here have certain rights but not the same right to work as Irish citizens. The State was entitled to control permission to enter its territory and to control non-nationals while they are here, she said.

She also said this case involved “unusual” and “extraordinary” delays which she said do not represent the experience of the majority of asylum seekers.

“Hard cases make bad law” and the State is concerned that permitting a right to work to some asylum seekers would lead to migrants “flooding” into the State, she said.

In dismissing his case, two Court of Appeal judges ruled the open-ended nature of the ban on work did not mean Section 9.4.b of the Refugee Act is unconstitutional and it rejected as “too broad a proposition” that non-Irish citizens enjoy the same general rights as Irish citizens.

Mr Justice Gerard Hogan disagreed with his two colleagues and ruled the man has a personal right under Article 40.3 of the Constitution to work here and Section 9.4.b of the Refugee Act unconstitutionally struck at the “very substance” of that constitutional right.

The Supreme Court appeal has been adjourned to resume on February 15.