N.H.v v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Ms. Justice Finlay Geoghegan
• Judgment Date: 14 March 2016
• Neutral Citation: [2016] IECA 86
• Docket Number: Record No. 2015/263
• Court: Court of Appeal (Ireland)
• Date: 14 March 2016

[2016] IECA 86

THE COURT OF APPEAL

Finlay Geoghegan J.

Hogan J.

Record No. 2015/263

Ryan P.

Finlay Geoghegan J.

Hogan J.

BETWEEN

N.H.V.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

THE ATTORNEY GENERAL

AND

THE IRISH HUMAN RIGHTS COMMISSION

NOTICE PARTIES

Asylum, immigration & nationality – Refusal to permit taking up of employment – Judicial review

Facts: The applicant had made an application for refugee status after arriving in the State. He sought permission to be able to take up employment whilst his application was pending. The respondent refused permission, and the matter now came to the Court on appeal from the High Court?s refusal of the judicial review application by the applicant.

Held by Ms Justice Finlay Geoghegan J, Ryan P concurring, that the appeal would be dismissed. Having considered the submissions of the parties, the Court was satisfied that the applicant did not have a constitutionally protected right to seek employment. Article 40.3 of the Constitution could not be said to give refugee status applicants such a right.

Hogan J handed down a dissenting opinion.

Judgment delivered by Ms. Justice Finlay Geoghegan on the 14th day of March 2016

Introduction

1 This is an appeal from the judgment and order of the High Court (McDermott J.) dismissing the application for judicial review of the appellant, a Burmese national, who arrived in the State on the 16th July, 2008 and applied for refugee status on the following day.

2 The factual background to his application for judicial review was that by May 2013, his application for a declaration of refugee status had not been determined. There had been decisions which had been the subject of successful judicial review applications and the matter was remitted back to the Refugee Appeals Tribunal. The appellant was experiencing distress and demoralisation being obliged to remain living in direct accommodation. He obtained a potential offer of employment and through his solicitor applied to the Minister 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 the Refugee Act 1996 (as amended) or by exercise of executive discretion. This was refused and the Minister indicated that he was precluded from granting permission by virtue of s. 9(4) of the Refugee Act 1996 (as amended).

3 The appellant was granted leave to apply for judicial review (Mac Eochaidh J.) on the 29th July, 2013, to seek the following reliefs:-

?(i). An order of certiorari quashing the decisions of the respondent dated 13th June and 15th July, 2013, to refuse to grant permission to the applicant to take up employment in the State on the ground that the Refugee Act 1996 precludes the respondent from so doing.

(ii). A declaration that the applicant, as a person who has sought protection in the State, is not precluded in law from being granted permission to take up employment in the State by the respondent.

(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?

4 Leave was granted on the following grounds:-

?(i) By refusing the applications made by or on behalf of the applicant for a residence permission pursuant to section 4 of the Immigration Act 2004 and/or pursuant to the respondent's executive discretion, which would permit him to take up employment, the respondent unlawfully fettered his discretion and/or unlawfully refused to process a valid application and/or imposed a restriction on himself which in law did not exist.

(ii) The respondent has wrongly applied section 9(4) of the Refugee Act 1996 by failing to recognise the express provision at section 9(11) of the Act which allows for section 9(4) to be waived.

(iii) The applicant has resided lawfully in the State since 17th July, 2008. To continue to prohibit him 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 Articles 7 and 15 thereof) and section 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 section 9(4) of the Refugee Act 1996 imposes a continuing prohibition on the applicant taking up 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.?

5 The application was heard in the High Court with a similar application which is no longer under appeal. The High Court (McDermott J.) in the written judgment delivered on the 17th April 2015, rejected each of the grounds relied upon and dismissed the application. The appellant has appealed on all grounds and the issues on appeal may be summarised as follows:-

1. Does the Minister have a discretion under s. 9 of the Refugee Act 1996, as amended to grant a work permit to a person in the position of the appellant;

2. If the Minister has no discretion under s. 9 of the 1996 Act, does she enjoy an inherent executive discretion to grant such a permit;

3. If the answers to the first two questions are in the negative is s. 9(4) of 1996 Act in breach of the EU Charter of Fundamental Rights;

4. Does the appellant have a personal right to work or earn a livelihood in the State protected by Article 40.3 of the Constitution and if so is s. 9(4) of the 1996 Act repugnant to the Constitution;

5. Does the appellant have a right to work in the State pursuant to Article 8 of the European Convention on Human Rights and if so is s. 9(4) of the 1996 incompatible with the ECHR.

6 I have had the opportunity of reading in draft the judgment of Hogan J. in which he addresses comprehensively all of the above issues. I am in agreement with his conclusions and reasons therefor on all issues, other than his conclusion that the appellant has a right to work or earn a livelihood protected by Article 40.3 and his consequential conclusion that s. 9(4)(b) of the 1996 Act is repugnant to the Constitution.

7 In this judgment I only propose addressing the appeal against the conclusions reached by the trial judge on the constitutional issues.

8 Hogan J. has referred to the principal judgments which trace the development of the approach of the Supreme Court and the High Court to the entitlement of non-citizens to rely upon different Articles of the Constitution and to challenge the constitutionality of an Act of the Oireachtas. Those judgments form the backdrop for the narrower questions at issue in this appeal. The appellant, as an applicant for asylum, contends that he has a personal right to work or earn a livelihood protected by Article 40.3 which he is entitled to enforce against the State. Article 40.3 in its express terms only refers to citizens:-

?1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.?

9 The trial judge identified correctly in my view the issue which the High Court had to decide on the application for judicial review in respect of which leave was granted namely whether the appellant, as an asylum seeker, is entitled to the right to work or earn a livelihood as a ?personal right? under Article 40.3 of the Constitution. Hogan J. identifies at para. 60 a broader issue as to ?whether a non-citizen can ever invoke the constitutional right to earn a livelihood?. I am not addressing that broader question. There are many classes of non-citizens, including EU citizens. The locus standi of the appellant is confined to his position as an applicant for asylum in the State.

10 The trial judge, correctly in my view, concluded, in accordance with the judgment of the Supreme Court in Re. Article 26 and ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 and the other judgments to which he referred, that the fundamental rights or personal rights protected by Article 40.3 to which a non-national may be entitled under the Constitution do not always coincide with the rights protected as regards citizens. Accordingly where a person, such as the appellant, claims to be entitled to a particular fundamental right or personal right within the meaning of Article 40.3 it is necessary to examine whether he is entitled to that particular right. Further, the appellant's status within the State is a relevant consideration to deciding whether he is entitled to the particular right.

11 I cannot share the view of Hogan J. that the Supreme Court by its judgments in Re. Article 26 and the Electoral (Amendment) Bill [1984] I.R. 268, Re. Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 and Nottinghamshire County Council v. K.B. [2011] IESC 48, [2013] 4 I.R. 662 has ?concluded that non-citizens in principle enjoy the rights guaranteed by the fundamental rights provisions of Articles 40 to 44 of the Constitution in much the same general (but perhaps not identical) manner as citizens?. That, in my view, is too broad a proposition. Nor can I agree with the view which he expressed in Omar v. Governor of Cloverhill Prison [2013] IEHC 579, [2013] 4 I.R. 186, in reliance upon the Electoral (Amendment) Bill judgment (and repeats in his judgment herein) that ?the Supreme Court has made it clear that the fundamental rights...