Respecting the dignity of asylum seekers – Ireland’s ‘right to work’ dilemma

“The longer the time we are not allowed to work, the more we rot and waste away. Our mental and physical health is greatly disturbed and completely demoralised.”^[1]

That every human being has a right to work is enshrined in the United Nations Declaration on Human Rights. This right is recognised in international law in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights, which states that States must not only recognise this fundamental right, but also take steps to ensure the full realisation of it. It is also expressly stated in the EU Charter of Fundamental Rights, where “everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’.” (Article 15).

For the past two decades, people who enter the Republic of Ireland to seek asylum have not been able to invoke this right. First, under the Refugee Act 1996, and then subsequently under the International Protection Act 2015, asylum seekers were absolutely prohibited from seeking or entering employment while an asylum application was being determined.

From Nasc’s years of experience working in this area, the lack of access to work has consistently been identified by asylum seekers as one of the key issues impacting people’s quality of life, their sense of self-worth, their dignity and independence, and their mental health and wellbeing. This is particularly true for people who have been in the asylum process for a considerable period of time, where the enforced idleness and poverty endemic to the ‘direct provision’ system severely affects people’s long-term chances to personally develop, self-advance and effectively integrate into Irish society.

Supreme Court Ruling

Last May, the Supreme Court ruled, in the case of NHV v Minister for Justice and Equality,^[2] that this prohibition on access to employment for asylum seekers was unconstitutional. The ruling hinged on the fact that there is currently no limitation on the amount of time an asylum application can take. Therefore, the lack of access to employment while in the protection process becomes absolute in nature.

The Court asked two very important questions in relation to making its judgment – whether a non-citizen, in this case a person seeking international protection, has constitutional rights; and is the right to work guaranteed in the Constitution, and if so, does that right extend to non-citizens?

“This involves a consideration of whether the right is in essence social, and tied to the civil society in which citizens live, in the way that it might be said that voting is limited by belonging to the relevant society, or whether the right protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons mandated by Article 40.1.”^[3]

There are several reasons why the Court’s ruling on this case is important. One is that it upholds that non-citizens do have constitutional rights, where those rights relate to their status as ‘human persons’. Secondly, the Court determined that the right to work, being connected to the dignity and freedom of the individual, is part of the human personality that cannot be prohibited absolutely, regardless of citizenship status.

However, it is important to note that the Court’s judgement did not deem that right to be unconditional – the State still may make legitimate distinctions between citizens and non-citizens in the expression of constitutional rights, in particular here in the context of access to employment.

The State’s Response

Given the nature of the judgement made by the Court, it gave the Government six months to make a submission on how to resolve the absolute prohibition. The Minister for Justice and Equality subsequently convened a Task Force to make recommendations on how the State should respond. Just this month, Minister Charlie Flanagan TD announced that the Government’s response is to opt in to the EU (Recast) Reception Conditions Directive (2013/33/EU).

In relation to access to employment, the Directive states that Member States must ensure that applicants for international protection have access to the labour market after nine months from when an asylum application has been lodged, if a first-instance decision has not been made on the case and the delay in the decision is not the fault of the applicant (2013/33/EU, Article 15).

The Directive allows that the State can determine the conditions for that access, in line with their own national laws and with EU labour market policies, but at the same time, access must be ‘effective’ for asylum seekers.

The Irish Government has not yet released any additional information on what access to employment will look like – for instance, if the Government will put in place restrictions on types of work that asylum seekers will be eligible to apply for. So although we cannot comment on the provision in detail, we would strongly urge the Government to include no additional barriers to access, to ensure that the right is real, substantive and effective.

The EU Directive

While we still do not know the specific details of the Government’s provisions for access to employment, we very strongly welcome the announcement that Ireland will be opting in to the Reception Conditions Directive. This is something that Nasc has long called for, to bring Ireland in line with the rest of Europe in its asylum policies and procedures. It is also a recommendation in the 2015 McMahon Report^[4] of the Working Group on the Protection Process and Direct Provision, of which we were a member.

This is because significant rights flow from this Directive, not only in relation to employment, but also protections for children and vulnerable people, access to vocational training and education, and the requirement to implement an assessment to identify vulnerability, to ensure particularly vulnerable applicants, such as victims of torture or sexual violence, are able to access the appropriate supports and services.

Importantly, opting in to the Directive will ensure that the asylum reception system – known in Ireland as ‘direct provision’ – is put on a statutory footing for the first time in its 17 years of operation, which will ensure that it has appropriate Parliamentary oversight. This will be a very welcome step towards introducing a more humane reception system for asylum seekers.

The Asylum Legacy

Coupled with the commitments the Government has made to improve the protection process and the ‘direct provision’ system, opting in to the Directive will have a significant positive impact on people’s experience of the asylum system in Ireland in the long term.

However, we cannot forget the thousands of people who have suffered the effects of a dysfunctional process – some for over a decade, many who were children – without a final decision on their case, or who sit on deportation orders that cannot be effected. This cohort of people will not be eligible to access the labour market, they will not see the long-term benefits of slow improvements to the system. They have been denied basic human rights, their dignity has not been respected, and all of us, as members of Irish society, will feel the consequences of their suffering, much like we have in the context of the Magdalene Laundries.

While the Government works to improve the asylum system for future applicants, they cannot forget that legacy and the impact it has – and will continue to have – on those who have waited countless years, those who continue to wait, and their children.

Notes

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^[1] Asylum seeker in direct provision, McMahon Report (2015), p. 279

^[2] NHV v Minister for Justice and Equality [2017] IESC, available here.

^[3] NHV v Minister for Justice and Equality, Para. 13

^[4] Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, Final Report June 2015