Monday 26 September 2016

Asylum seeker does not have constitutional right to work here despite long wait for decision on status, Court of Appeal rules

Published 14/03/2016 | 16:52

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AN asylum seeker does not have a constitutional right to work here despite the fact that he is still awaiting a decision on whether he is a refugee after more than seven years, the Court of Appeal ruled.

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By 2-1, the court rejected an appeal by the Burmese man against a High Court ruling that the Minister for Justice was entitled to refuse his application to work under Section 9.4.b of the 1996 Refugee Act which says the asylum application must first be dealt with before he can seek employment.

He claimed the refusal to allow him work - having been living in Direct Provision bed and board accommodation with a €19 per week payment since 2008 - has caused him personal distress and demoralisation.

The appeal court, while disagreeing on his constitutional action, agreed the fact that it has taken so long to deal with his asylum application "reflected little credit on the public administration and, for that matter the legal system, of this State".

He arrived in November 2008, applied for asylum which was refused the following month.  He appealed and this was rejected in July 2009 by the Refugee Appeals Tribunal (RAT).

He brought a judicial review challenge to that decision in the High Court which in July 2013 ordered a reconsideration of his application.

He went through the same asylum process again and was again rejected by a RAT in November 2013.  He brought another challenge in the High Court which again said his case should be referred back for re-consideration by the RAT.

A decision on this second re-consideration has yet to be made by the RAT.

The man has already indicated that if the RAT was to again reject him, he will make another asylum-linked application known as "subsidiary protection", a process which could also take several years.

The Court of Appeal was critical of that delay with all three judges agreeing with comments from dissenting judge, Mr Justice Gerard Hogan, that it did not reflect well on the State.

However, his two colleagues, appeal court president Mr Justice Sean Ryan and Ms Mary Finlay Geoghegan, disagreed with Mr Justice Hogan's finding that because of the open ended nature of the ban on work, then the relevant part of the Refugee Act (Section 9.4.b) was unconstitutional.

Mr Justice Hogan said if an asylum seeker was entitled to work immediately, there would be a significant "pull factor" likely to attract significant numbers of economic migrants.

However, if for example, asylum seekers were required to wait for three years before a work application could be considered, this would "have the effect of deterring many - admittedly not all - claimants who were in reality economic migrants", he said.

It was his view that non-citizens in principle enjoy fundamental rights guaranteed by the Constitution "in much the same general (but perhaps not identical) manner as citizens".   One of those is the right to earn a livelihood.

Therefore, he said, the "open-ended and indefinite exclusion" of the Burmese man from the labour market, by virtue of the Refugee Act, "strikes at the very substance of his right to earn a livelihood".

Section 9.4 of of the Refugee Act was therefore unconstitutional "in its present form", although the legislation itself is not in principle unconstitutional, he said.

Ms Justice Finlay Geoghegan, on behalf of herself and Mr Justice Ryan, disagreed with Mr Justice Hogan's view that previous Supreme Court decisions meant non-citizens enjoyed the same general rights as citizens.

This was, in her view, "too broad a proposition".

One of those previous judgments supported the conclusion that "certain non-citizens may be entitled to certain constitutionally protected or personal rights", she said.

A right to work is inextricably linked to a person's status within the State and cannot be exercised in a vacuum, she said.

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