A. (A Minor) v International Protection Appeals Tribunal (Labour Market Access)

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date23 March 2023
Neutral Citation[2023] IEHC 141
CourtHigh Court
Docket Number2022 No. 275 J.R.
Between
A. (A Minor Suing by His Mother and Next Friend)
A.A.
N.A.
Applicants
and
International Protection Appeals Tribunal
Minister for Justice and Equality
Ireland and The Attorney General
Respondents

[2023] IEHC 141

2022 No. 275 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Labour market access – International protection – Applicants seeking judicial review – Whether the applicants were entitled to access the labour market

Facts: The applicants for judicial review were a family consisting of a father, mother, and a child under the age of two years. The judicial review proceedings concerned the period prior to 30 September 2022 during which time the parents were not permitted to work lawfully within the Irish State. The child was born in April 2021. An application for international protection had been made on his behalf by his mother on 26 July 2021. As of the date the judicial review proceedings were instituted on 4 April 2022 that application had not yet been determined. The child’s application for international protection had since been successful and the Appeals Tribunal, by decision dated 19 January 2023, recommended that a refugee declaration be made in his favour. During the pendency of the child’s application for international protection, his father and mother had both applied, in November 2021, to access the labour market on the strength of the child’s application for international protection. It was contended that the child, as applicant, was entitled in principle to access the labour market, and that they, qua the child’s parents, were entitled to exercise that right vicariously. The parents’ applications to access the labour market were refused on 23 March 2022. The decisions to refuse those applications were challenged in the judicial review proceedings. The proceedings were heard on 17 January 2023 and judgment was reserved. Prior to judgment being delivered, the claimants’ solicitor wrote to the registrar to inform the High Court that the child’s application for international protection had been successful. The proceedings were then relisted before the court for directions on 16 February 2023. The applicants were directed to provide further and better particulars of their claim for damages. The particulars were delivered on 8 March 2023.

Held by Simons J that it was appropriate that the substantive issues in the judicial review proceedings be determined notwithstanding that the applicants’ immigration status has been regularised since the proceedings were instituted; the proceedings were not, strictly speaking, moot in that there continued to be a concrete legal dispute between the parties in respect of the claim for Francovich damages: Joined Cases C-6/90 and C-9/90, Francovich, EU:C:1991:428. Simons J held that the application for judicial review failed on the merits. He held that an infant child does not have a right to work in the Irish State and at the material time, the child was less than eighteen months old. Therefore, Simons J held that it was incorrect for the applicants to assert that their child enjoyed a right to access the labour market, which supposed right could have been exercised by them vicariously on his behalf. Simons J held that it was also incorrect to assert that the parents enjoyed a derived right to access the labour market in order to ensure that their child had an adequate standard of living during the pendency of his application for international protection; rather, Directive 2013/33/EU (the Reception Conditions Directive) imposes the obligation upon the Member State to ensure that material reception conditions (including housing, food, clothing and education) are made available to a minor applicant. Simons J held that there was no evidence that the needs of the child in this case were not met; rather, the affidavit evidence confirmed that the parents were in receipt of social protection payments throughout the period of the child’s application for international protection and were able to afford to rent accommodation in the private sector throughout that period.

Simons J held that an order would be made dismissing the application for judicial review.

Application refused.

Appearances

Conor Power SC and Eamonn Dornan for the applicants instructed by BKC Solicitors

Eoin Carolan SC and Katherine Mc Gillicuddy for the respondents instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 23 March 2023

INTRODUCTION
1

This judgment considers the circumstances in which an individual, who has made an application under the International Protection Act 2015, has a right to work in the Irish State pending the determination of that application. The relevant legislation provides for the grant of what is described as a “ labour market access permission” in circumstances where a first instance decision has not been made in respect of an application for international protection within six months.

2

The principal argument advanced in these judicial review proceedings is that, in circumstances where the applicant for international protection is a child, and thus cannot lawfully work himself, the Irish State is under an obligation to provide labour market access to the child's parents. It is said that, in order for the child's supposed right of access to the labour market to be effective, it is necessary that it be exercised vicariously by his parents.

PROCEDURAL HISTORY
3

The applicants for judicial review are a family consisting of a father, mother, and a child under the age of two years. For ease of exposition, and to protect their anonymity, the adult applicants will be referred to throughout this judgment as “ the father” and “ the mother” or simply “ the parents”; and the minor applicant will be referred to as “ the child”. When referring to the applicants for judicial review collectively, the term “ the claimants” will be used so as to avoid any confusion between an applicant for international protection and an applicant for judicial review.

4

The parents are nationals of a non-EU State. The parents had each previously applied for international protection. They had each been permitted to access the labour market during the latter part of the currency of their applications.

5

The parents' applications for international protection were ultimately unsuccessful. For a period of some two and a half years thereafter, the parents' immigration status in the Irish State was precarious and they were subject to (unexecuted) deportation orders. The parents' immigration status has since been regularised: on 30 September 2022, the parents were both granted so-called “ Stamp 4” permissions which allow them to reside and work in the Irish State for a period of three years.

6

These judicial review proceedings concern the period prior to 30 September 2022 during which time the parents were not permitted to work lawfully within the Irish State. The parents contend that, for part of this period, they should have been permitted to access the labour market by virtue of the fact that their child was awaiting a determination of his own application for international protection. The child was born in April 2021. An application for international protection had been made on his behalf by his mother on 26 July 2021. As of the date these judicial review proceedings were instituted on 4 April 2022, that application had not yet been determined. The child's application for international protection has since been successful and the Appeals Tribunal, by decision dated 19 January 2023, recommended that a refugee declaration be made in his favour.

7

During the pendency of the child's application for international protection, his father and mother had both applied, in November 2021, to access the labour market on the strength of the child's application for international protection. In brief, it was contended that the child, as applicant, was entitled in principle to access the labour market, and that they, qua the child's parents, were entitled to exercise this right vicariously. The parents' applications to access the labour market were refused on 23 March 2022. The decisions to refuse these applications are challenged in these judicial review proceedings.

8

The proceedings were heard on 17 January 2023 and judgment was reserved. Prior to judgment being delivered, the claimants' solicitor wrote to the registrar to inform the court that the child's application for international protection had been successful. These proceedings were then relisted before the court for directions on 16 February 2023. The claimants were directed to provide further and better particulars of their claim for damages. The particulars were delivered on 8 March 2023.

LEGISLATIVE FRAMEWORK
9

Directive 2013/33/EU lays down minimum standards for the reception of asylum seekers (“ Reception Conditions Directive”). The Irish State had originally opted out of the Reception Conditions Directive but, by letter of 24 January 2018, notified the European Commission of its wish to accept and be bound by same. Thereafter, the European Commission determined that the Irish State should bring into force the laws, regulations and administrative provisions necessary to comply with the Reception Conditions Directive by 30 June 2018. See Commission Decision (EU) 2018/753.

10

Article 15 of the Reception Conditions Directive provides as follows:

  • “1. Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.

  • 2. Member States shall decide the conditions for granting access to the labour market for the applicant, in accordance with their national law, while ensuring that applicants have...

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  • L.K. v International Protection Appeals Tribunal and Others
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    • High Court
    • 26 April 2023
    ...Simons J. in this Court's very recent (23 March 2023) decision in AA (a minor suing by his mother and next friend) AA, NA v. IPAT & MJE [2023] IEHC 141:- “ None of this is to say that such a claim would ultimately be successful nor that the stringent conditions for Francovich damages have b......

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