Ban on asylum seekers seeking employment unconstitutional, says Supreme Court

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A Burmese man who spent eight years in direct provision has unanimously won his Supreme Court appeal over the legal ban preventing him from working.

In a significant decision, the seven judge Supreme Court today unanimously found in favour of the man but adjourned the matter for six months to allow the legislature consider how to address the situation.

The court found that, “in principle”, the ban in the Refugee Act on asylum seekers seeking employment, is contrary to the constitutional right to seek employment.

The decision could have major implications for other asylum seekers.

Giving the court’s judgment, Mr Justice Donal O’Donnell said the man was eight years in the asylum system before getting refugee status.

While the State can legitimately have a policy of restricting employment of asylum seekers, Section 9.4 of the Refugee Act does “not just severely limit” the right to seek work for asylum seekers but “removes it altogether”, he said.

If there is no limit on the time for processing an asylum application, that could amount to an absolute prohibition on employment, no matter how long a person was within the system, he said.

He could not accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time for asylum seekers.

“The point has been reached when it cannot be said the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment,” he said.

“This damage to the individual’s’ self worth and sense of themselves, is exactly the damage which the constitutional right [to seek employment] seeks to guard against.”

The evidence from the man of the depression, frustration and lack of self-belief at being unable to work “bears this out”, he added.

He said, in principle, he would be prepared to find, in circumstances where there is no temporal limit on the asylum process, the “absolute prohibiton” on seeking of employment in Section 9.4, and re-enacted in Section 16.3.b of the International Protection Act 2015, “is contrary to the constitutional right to seek employment”.

In dismissing the man’s case last year, a majority Court of Appeal ruled the open ended nature of the ban on work did not mean Section 9.4 is unconstitutional and rejected as “too broad a proposition” non-Irish citizens enjoy the same general rights as Irish citizens.

Mr Justice Gerard Hogan disagreed. He ruled the man has a personal right under Article 40.3 of the Constitution to work here and Section 9.4.unconstitutionally struck at the “very substance” of that constitutional right.

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