Ban On Asylum Seekers Working In Ireland Declared Unconstitutional

Author:Ms Melanie Crowley
Profession:Mason Hayes & Curran
 
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In  May 2017, the Supreme Court ruled that the prohibition on asylum seekers working in Ireland was unconstitutional. The Supreme Court made this decision in principle but gave the State six months in which to rectify the issue. In November 2017, the State sought more time to put measures in place.

Supreme Court declaration

The Supreme Court formally declared in February 2018 that the International Protection Act, 2015, which replaced the Refugee Act, 1996, was unconstitutional. The absolute restriction on asylum seekers working in Ireland, as a result, is no longer part of the law in Ireland. The Supreme Court, in coming to this decision, found that the right to work is "connected to the dignity and freedom" of an individual and could not be "withheld absolutely" from non-citizens.

The Supreme Court held that the State could have a policy in place restricting asylum seekers from entering employment. Where there is no maximum time limit in Ireland for an application for refugee status to be processed, the Court found that this could amount to an absolute prohibition on employment.

Next Steps

In advance of this declaration, the Government confirmed it has sought to opt into the EU (recast) Reception Conditions Directive 2013. This Directive has a compliance process which can last up to four months before Ireland can formally opt into the Directive. An implementation group has been set up to assess and establish a system for Ireland's adoption of, and compliance with, the Directive. 

Once adopted, the Directive will provide asylum seekers with rights to work in certain circumstances as well as provisions for children's rights, health, education and material reception conditions for applicants.

For now 

Before the new system is established, interim measures have been adopted to provide asylum seekers with access to the labour market following the Supreme Court decision. These measures are as follows: 

all applicants will be able to access the Employment Permits System on the same basis as other non-EEA nationals, and an administrative scheme will be established to allow for access to...

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