Did the Supreme Court fail to protect asylum seekers or is the government failing in its redress?

A man from Burma who had spent 8 years in Direct Provision was offered a job while awaiting a decision on his application for International Protection. He could not take up the employment because asylum seekers were barred from seeking work and working while their application is being processed. The application process can be very lengthy. Sometimes it becomes necessary to restart the process. And he did that several times before being granted

His application had been refused in the first instance and he filed an appeal. The appeals tribunal upheld the refusal to grant protection and so the man took his application to the courts for review. He lost the court case too and filed a fresh application. And he had to repeat this process.

Surprisingly, he met the threshold for UN Convention Refugee Status while he was challenging the refusal to let him work. The average waiting time between application and final decision is two and half years. A fresh application or several fresh applications can extend time in Direct Provision to 10 years. It’s easy to see how the man could have spent 8 years in Direct Provision without ever being allowed to work. It is also possible to spend the same period without ever making a fresh application. Especially if you have a Dublin Regulation transfer to another EU State. You may have to first appeal to have your application processed in Ireland and that process too takes time.

In challenging the Minister’s refusal to let him work, the Burmese man argued that the time spent in Direct Provision without certainty of time for processing applications for refugee status and being forbidden to work had a negative impact on his self-esteem and sense of being human. His life had been in limbo for over 8 years navigating a complex asylum process. He was stripped of the personal autonomy and dignity that comes with being able to work, and to shape minor and major aspects of his life. A contractor appointed by the Irish government decided what he would have for breakfast, lunch dinner and when he could have it for over 8 years like a prisoner.

And the court concluded that an asylum seeker can rely on constitutional rights that affect them as human beings. In other words, an asylum seeker does not have to be an Irish/EU/EEA citizen to have their right to work, dignity, private and family life, and equality before the law to be respected. And the court declared the absolute ban on the right to work for asylum seekers unconstitutional.

The government had used “pull factors” as one of the arguments against granting asylum seekers access to the Irish labour market. If the State had treated asylum seekers humanely, it would invite others to seek asylum in Ireland. They presented no credible evidence to support this. It is also a disturbing argument for a rights respecting democracy to make. That it is acceptable to treat people inhumanely if it deters other people from seeking protection in

Uganda is one of the poorest countries in the world. Part of their national budget is made up of foreign aid. The country has over 1 million refugees who fled conflict in neighbouring countries. Ireland has just over 5000 asylum seekers in Direct Provision and a few thousands more not in Direct Provision. The government saw no shame in arguing in court for the ill-treatment of people to guard against non-existent pull factors. If there were such pull factors, what on earth could have attracted over 1 million people to seek asylum in Uganda, one of the poorest countries on the planet? The same could be asked about the 1 million+ refugees in Jordan.

It is disappointing that the Supreme Court did not scrutinise the “pull factors” claim. Instead, the court allowed the government to consider “pull factors” when remedying the unconstitutionality of the ban on the right to work for people seeking protection in Ireland. In compliance with the court ruling, the government came up with a policy that makes a mockery of the Supreme Court judgement.

The government published Statutory Instrument 230 of 2018 which regulates reception conditions for asylum seekers in Ireland. In it, an International Protection applicant who has been awaiting a first instance decision for at least 9 months will be given permission to work.

While this removes many of the restrictions that were in place prior to Ireland opting into the EU Directive on Reception Conditions, it still fails to give access to the labour to people who are in the same position as the Burmese man who took the government to court.

Any applicant who has received a first instance decision and is appealing it will not be allowed to work. Given that it is possible to be refused protection at first instance and have the decision overturned on appeal, the use of first instance decisions to exclude people who have already spent years in Direct Provision is clearly unfair. Importantly, it shows that the Supreme Court judgement has not changed their lives in anyway as they will still spend years in Direct Provision without ever being allowed to work.

The government’s remedy seems to be undermining the Supreme Court judgement. It is difficult to understand how the court would be satisfied with the government’s new labour market access arrangements if they still make it possible for an International Protection applicant to spend years in Direct Provision without ever being allowed to work.
The problem here stems from three important issues. First, the court judgement itself allows for the government to limit the access to the labour market for asylum seekers in favour of EU/EEA nationals. But the court says the access to the labour market must be effective. Maybe another court case to clarify what effective access to the labour market means is warranted.

Second, the government had no interest in allowing asylum seekers to work. They were forced to do so hence they chose to allow access after 9 months when the EU Directive on reception conditions clearly allows for access to the labour market to be granted even earlier than that. While the Directive says access to the labour market must be effective, it also allows the State to restrict sectors of employment and to favour EU/EEA nationals and other legally resident third country nationals over asylum seekers.

Thirdly, the use of the words “first instance” decision as a precondition for granting labour market access. This comes from the EU Directive and is being used to exclude people who are at the appeals stage of their application from working. It has been established that 3 in every 4 applications for protection in Ireland are refused in the first instance and many get protection after appealing.

Thus, the idea that a first instance decision invalidates an asylum claim is ludicrous and has no legal basis since a person remains an applicant until a final decision is made on the judicial review of their application. Appeals are an integral part of the application process and have proven to be more useful for many asylum seekers whose applications were refused at first instance.

Importantly, a person does not cease to be a human being after applying for protection in Ireland or receiving a first instance decision anywhere in the European Union. There is no justification for treating asylum seekers as if they are less human. A first instance decision is not a legitimate reason to strip a human being of any of their human rights that they can invoke in the Irish constitution. Refusing to allow asylum seekers to work suggests that their right to dignity can be undermined because they have a first instance decision on their application.

It is unimaginable that the Supreme Court in Ireland could have made a declaration of unconstitutionality of the ban and accepts that the judgement would have no impact on the lives of many asylum seekers. In fact, at the time of the court hearing, the man who had taken the government to court had already received UN Convention Refugee Status allowing him to work. But the court proceeded with the case because the court was aware that there are people in Ireland who are in the same position as the applicant. In the interest of justice, it was necessary to proceed with the case.

The Department of Justice and Equality is therefore perpetuating an injustice in its refusal to allow International Protection applicants who are in the appeals stage of their application to work. A person who applied for protection in October 2017 will be allowed to work whereas a person who has been living in Direct Provision for years before then will not be allowed to work.

Granting all International Protection applicants early access to the Irish labour market would not only benefit the applicants but the Irish government as well. Because when a person can work, they are able to support themselves and not depend on social welfare. Importantly, it makes it easier for people who would be granted some form of protection to integrate into Irish society. At present, people can spend as long as 17 months in Direct Provision after being granted permission because they are struggling to find accommodation. Such will be the fate of the many people who are not allowed to work under the new arrangements.