N.H.v and Another v Minister for Justice and Equality and Another
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice McDermott |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] IEHC 246 |
| Date | 17 April 2015 |
[2015] IEHC 246
THE HIGH COURT
BETWEEN
AND
AND
Asylum – Immigration Act 2004 – Refugee Act 1996, (as amended) – Delay in processing the asylum applications – Art. 40.3 of the Constitution – Art. 8 of the European Convention on Human Rights
Facts: The applicants sought relief from loss of derived right caused as a result of the delay in the processing of asylum applications. The applicants claimed that the delay gave rise to right to private life and permission to work in the State in their favour. The applicants claimed that as asylum seekers they had a right to work or earn a livelihood guaranteed under Art. 40.3 of the Constitution and Art. 8 of the European Convention on Human Rights. The applicants claimed that s. 9 of the Refugee Act 1996, (as amended) did not preclude the respondent from granting permission to a refugee applicant to take up employment. The applicants claimed that it was incompatible with European Union law and the Charter of Fundamental Rights.
Mr. Justice McDermott held that the applications for an order granting right to private life and permission to work in the State would be refused. The Court stated that Art. 40.3 of the Constitution did not afford such a right. In case of the law governing the presence of a non-nationals in the State, the provisions of the Refugee Act 1996 (as amended) prevails over other regulations. Adopting the principle propounded in the judgment of the High Court in Fariborz Rostami v. The Secretary of State for the Home Department [2013] EWHC 1494, the Court held that unlike EU citizens, the non EU citizens did not have the freedom or right to seek employment and to work. The Court held that the Charter of Fundamental Rights patently recognised the right in favour of EU citizens. In disregard of the claim of incompatibility of s. 9 of the Refugee Act 1996, (as amended), with Article 8 of the Convention, the Court held that the respondent did not act in incompatible manner. There was no conflict between s. 9 of the Refugee Act 1996, (as amended), and the right to private life guaranteed under Article 8 of the Convention.
JUDGMENT of Mr. Justice McDermott delivered on the 17th day of April, 2015
1. These cases were heard together as they relate to the same issue. Both applicants are asylum seekers and requested temporary permission to work in the State claiming to have an entitlement to do so pursuant to s. 4 of the Immigration Act 2004 and s. 9(11) of the Refugee Act 1996 (as amended), or in the alternative, on the exercise by the respondent of her executive discretion. Both applications were refused on the grounds that the Minister was precluded by s.9 (4) of the Refugee Act 1996 (as amended) from considering or granting such permission, and no discretionary power had been vested in the Minister to do so.
2. The applicants were granted leave to apply for judicial review (McDermott J) on 14 th October 2013 seeking the following reliefs:-
i "(i) A declaration that the applicant(s) as person(s) who sought protection in the State, (are) not precluded in law from being granted permission (or) from taking up employment in the State by the respondent.
(ii) An order of certiorari quashing the decision(s) of the respondent to refuse to process and determine the applicants' application(s) for permission to take up employment in the State on the basis of being precluded in law.
(iii) In the alternative to (i) and (ii), if the effect of s. 9 (4) of the Refugee Act 1996 (as amended) is that the respondent is precluded in law from granting permission to the applicant to take up employment, a declaration that s. 9 (4) is repugnant to the Constitution, and in breach of Articles 7 and 15 of the Charter of Fundamental Rights and/or incompatible with the European Convention on Human Rights"
3. Leave to reply for judicial review was granted on the following grounds:-
i "(i) The respondent has wrongly applied s. 9(4) of the Refugee Act 1996 (as amended) by failing to recognise the express provision at s. 9(11) of the Act which allows for s. 9(4) to be waived.
(ii) By refusing to determine the application(s) made by or on behalf of the applicant(s) for a residence permit which would permit (them) to take up employment, the respondent unlawfully fettered his discretion and/or imposed a restriction on himself which in law did not exist and/or unlawfully refused to process a valid application.
(iii) The applicant(s)' (have) resided lawfully in the State since (2008). To continue to prohibit (them) from working after such a long period of lawful residence in the State is in breach of the applicant(s)' rights under the Constitution (including Article 40.3) thereof, the Charter of Fundamental Rights (including Article 7 and 15 thereof) and s. 3 of the European Convention on Human Rights Act 2003 (with reliance on inter alia Articles 8 and 14 of the European Convention on Human Rights).
(iv) By reason of (iii) if s. 9(4) of the Refugee Act 1996 (as amended) imposes a continuing prohibition on the applicant(s) taking up a lawful employment in the State, and prevents any exception being made to this prohibition, then the said section is repugnant to the Constitution, in breach of the Charter of Fundamental Rights and incompatible with the European Convention on Human Rights."
4. Mr. V. is a Burmese national born on 1 st June 1979. He arrived in the State on 16 th July 2008 and applied for refugee status the following day. On 25 th November 2008, he attended for interview with ORAC and received a negative recommendation in respect of his application for asylum on 22 nd December. His appeal hearing before the Refugee Appeals Tribunal took place on 26 th May 2009, following which a negative recommendation was made in July 2009. Judicial Review proceedings issued and the decision was quashed (Clark J.) on 16 th July 2013. Following this determination the applicant was obliged to re-enter the process and re-attend the Tribunal for a fresh hearing which, he fears could take many years to reach a conclusion. Should the outcome be negative, he states that his intention is then to apply for subsidiary protection which, he is advised could also take several years. Mr. V. expresses distress and demoralisation at being obliged to remain in direct accommodation at St Patrick's Centre, Drumgask, Co Monaghan living on €19 per week. He experiences insomnia and deteriorating health because of his accommodation and feels depressed because he is prevented from engaging in meaningful employment. He fears that it could take up to 10 years to complete his engagement with the protection process and that it would transform his existence if he could take up employment.
5. By letter dated 8 th May 2013, Mr. V. was offered employment as a chef in St Patrick's Accommodation Centre. By letter dated 30 th May, his solicitor applied to the respondent for temporary permission to reside and work in the State either pursuant to s. 4 of the Immigration Act 2004 or s. 9(11) of Refugee Act 1996 (as amended) or, in the alternative, by the exercise of executive discretion. By letter dated 13 th June, his application was refused. On 15 th July, his solicitor wrote again repeating the submission that the respondent had the power to grant him permission to reside and work in the State whilst his protection application was being determined. By letter dated 15 th July, the Department responded and again refused his application.
6. Mr. T. is a national of Cameroon born on 23 rd March 1989. He arrived in Ireland on 24 th April 2008 and applied for asylum. On 4 th September, 2008, Mr. T. received a negative recommendation from ORAC and appealed to the Refugee Appeals Tribunal. This appeal was refused on 5 th July 2009 and leave to apply for judicial review was sought. On 18 th April, 2013, the Tribunal decision was quashed (MacEochaidh J.) in the High Court and the matter was remitted back to the Tribunal for rehearing. No date or time-frame has been fixed for this process. If precluded from working, Mr. T. is obliged to remain in the direct provision hostel accommodation where he has been for the last 5 years in receipt of €19 per week. He emphasises that this is a difficult and demoralising situation.
7. On 1 st August, 2012, his solicitor submitted an application for temporary permission to reside and work in the State, which he asserted was at the discretion of the Minister pending the determination of his asylum application. On 8 th August, 2012, the respondent replied by letter stating that this was a matter for the Chief State Solicitors Office. On 14 th August, the applicant's solicitor wrote again to the respondent (also sending a copy to the office of the Chief State Solicitor), reiterating the submission that the Minister retained a discretion to grant permission to reside and work in the State while his client's asylum application was being determined.
8. On 9 th June, 2013, Mr. T. was offered employment as a gym instructor by Villa Football Club in Waterford. On 17 th July, his solicitor again wrote to the respondent requesting that he be granted permission to take up employment and enclosed the job offer. The letter reiterated the submission that the respondent had the power under s. 4 of the Immigration Act 2004, to grant permission to remain on a temporary basis and that nothing in the Refugee Act 1996 (as amended) or the Immigration Act 2004, limited or restricted this power in respect of a person who has made an...
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