N.v.H v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 30 May 2017
• Neutral Citation: [2017] IESC 35
• Court: Supreme Court
• Docket Number: Supreme Court No.: 31 & 56/2016,[C.A. No. 263 of 2015] & [S.C. Nos. 31 & 56 of 2016]
• Date: 30 May 2017

BETWEEN:

N.V.H.

Applicant/Appellant

AND

Minister for Justice and Equality

Respondent/Respondent

AND

The Attorney General

The Irish Human Rights and Equality Commission

Notice Parties

[2017] IESC 35

O'Donnell Donal J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

MacMenamin J.

Laffoy J.

Charleton J.

O'Malley Iseult J.

Supreme Court No.: 31 & 56/2016

SUPREME COURT

Asylum & immigration – Direct provision – Offer of employment in direct provision facility – S 9 Refugee Act 1996

Facts: The appellant, a Burmese national, had made a claim for refugee status. His claim was refused, but an application for judicial review was made and granted. A fresh application was made and refused, and later the decision was discharged by consent. During this period he had been in Direct Provision accommodation, and had been offered employment in that facility. The respondent had refused permission for the appellant to do so under s 9 of the Refugee Act 1996. The High Court had dismissed the appellant's challenge to the refusal, and the Court of Appeal had upheld that decision. The matter now came on appeal.

Held by O'Donnell J, the other Justices concurring, that the appeal would be heard, and would not be regarded as moot now that the appellant had been granted refugee status. The challenge to s 9 was a matter of law, and would not benefit from consideration in a new set of facts. In respect of the constitutional rights as a human person, non-citizens could rely on those rights but differentiation could be made on the basis of art 40.1. In respect of the right to work, O'Donnell J was persuaded that such a right could not be absolutely barred but legitimate distinctions between citizens and non-citizens were justified. In the facts before the Court, O'Donnell J was persuaded that the lack of temporal limit on the asylum process and the long delay in resolving the appellant's asylum claim offended the constitutional right to seek work.

The parties were invited to make submissions before a final order was made.

Judgment of O'Donnell J. delivered the 30th of May 2017

1 1 Section 9 of the Refugee Act 1996 provided that a person seeking asylum is entitled to enter the State and remain here while the application for refugee status is processed. Section 9(4) also provided however, inter alia, that an applicant shall not seek or enter employment before final determination of his or her application for a declaration. Pending the determination of an application for refugee status, applicants are required to live in State provided accommodation known as Direct Provision, and provided in addition with an allowance of €19 per week. These are the central legal provisions giving rise to the legal issue in this case.

2 The appellant in this case, is a native of Burma who arrived in the State on the 16th July, 2008, and applied for refugee status on the following day. His application was refused at first instance and on appeal by the Refugee Appeals Tribunal in 2009. That decision was challenged and quashed on judicial review in July 2013. Thereafter the applicant was obliged to re-enter the process, and commenced an application afresh. This resulted in a further refusal which was upheld by the Refugee Appeals Tribunal in November 2013. That decision was however quashed on consent in February 2014, and accordingly the process was required to be recommenced. At that point, the appellant had been in Direct Provision for almost six years and faced a further significant delay before his application was finalised. Even then, in the event that his application was unsuccessful, he could have applied for subsidiary protection which, it was anticipated, could take a number of years.

3 Since his arrival in the State, the appellant has been living in Direct Provision in County Monaghan. In May 2013, he was offered employment in the Direct Provision facility. He is, or at least appears to be, precluded from taking up that offer of employment from the provisions of s.9(4). He had applied to the Minister for Justice for permission to take up the offer of employment. The Minister refused on the grounds that such employment was precluded by s.9(4). Accordingly, the appellant commenced these proceedings seeking to challenge that interpretation of s.9(4) and/or to seek a declaration of the incompatibility of s.9(4) with the Charter of the European Union, the European Convention on Human Rights, and the Constitution. His claim was dismissed by the High Court (McDermott J.) in a careful judgment. The Court of Appeal by a majority, (Ryan P., Finlay Geoghegan J.; Hogan J. dissenting) upheld that decision notwithstanding the considerable sympathy the Court expressed for the plight of the appellant. Hogan J. dismissed the claims in EU law and in relation to the European Convention on Human Rights, but dissented in this regard, that he would have found that the appellant, although a non-citizen, was entitled to rely on the unenumerated right to work protected by Article 40.3 of the Constitution. Hogan J. ruled that whilst the State had very considerable latitude in this regard, the blanket ban on employment contained in s.9(4) was disproportionate to any legitimate State interest, and accordingly invalid. Since the commencement of these proceedings, the 1996 Act, including s.9(4) has been repealed by s.6 of the International Protection Act 2015 subject to certain transitory provisions contained in Part 11 of that Act, which continued the application of the 1996 Act to certain cases in being. However s.16(3)(b) of the 2015 Act contains an almost identical prohibition on applicants from seeking or entering employment or being employed or otherwise engaged in any gainful work or occupation. Although therefore the precise regime applicable to the applicant may require to be clarified, it is clear that the entry into force of the 2015 Act does not of itself render these proceedings moot or require any further or different analysis. Possible mootness does arise however in a different context.

Preliminary Issue: Mootness

4 This Court granted leave to appeal on the 27th April, 2016. In the period between that decision and the hearing however, the appellant was granted refugee status, and the State respondent now contends that the appeal is moot.

5 Insomuch as the proceedings challenge the decision of the Minister not to permit the appellant to work, the proceedings are indeed substantially moot. The objective of the judicial review proceedings was to quash the alleged decision of the Minister refusing permission, and therefore permit the appellant to have the opportunity to work notwithstanding his position as a person seeking refugee status. As of the date of hearing in this Court, the appellant now has refugee status, and is no longer an asylum seeker. He is therefore free to work. It follows that no benefit would be obtained by quashing the ministerial decision, if such was made. Furthermore, the appellant is no longer affected by the provisions of s.9(4) and its removal would not afford him any practical benefit. Indeed, and in practical terms, the applicant is now better positioned than if the proceedings had succeeded since even success in the proceedings might not have provided the applicant with the full entitlement to work which he now has.

6 However, I have come to the conclusion that the Court should proceed to hear and determine this appeal. First the claim is in substance a constitutional challenge to s.9(4) and that claim is not necessarily moot. A person affected by the operation of a statute which he or she contends is unconstitutional, may be entitled to maintain the claim even if the statute is no longer being applied to them. They have been affected by the operation of a provision which they contend is unconstitutional, and in the normal course are entitled to have that issue determined, and if successful to have the treatment declared unlawful, and if necessary the provision declared unconstitutional. Furthermore, the potential mootness arose after this Court had granted leave to appeal. The grant of leave to appeal to this Court establishes that there is a point of law of general public importance arising here. Accordingly a question mark at best exists over the operation of the provision of s.9(4), and that is a factor (although not a determinative one in every case) that weighs in favour of hearing and determining the case and resolving the legal issue one way or another. Also, this case is plainly a test case supported as it is by the Irish Human Rights and Equality Commission, and therefore, the circumstances will recur. It is probably desirable that it should be dealt with now rather that to wait for another case to make its way through the legal system. The legal issues raised are matters of law, and will gain nothing from being raised in the context of new facts in a different case. For this combination of reasons, I consider the case should be heard and determined.

7 There is a related issue. Counsel for the respondent suggests that the facts of the situation on which this case arose, were highly unusual and indeed exceptional. It was said, correctly no doubt, that the length of time the Applicant had been precluded by s.9(4) from working was a consequence of delays in the decision making process (and review of that process) in relation to his application for refugee status. That was exceptional. It was wrong to judge the overall system (and by extension s.9(4)) in the context of facts which were extreme). Most cases she suggested were dealt with within a reasonable time, and it was certainly unusual to have two decisions quashed by judicial review. However, the rule that to have locus standi to challenge a provision a person must be directly affected by it, has as its corollary, the fact that if one individual is adversely affected by a provision then...