The key impetus for Ireland’s proposed opt-in to the EU Reception Directive was the Supreme Court decision that determined Ireland’s current absolute prohibition on asylum seekers entering work will be unconstitutional (from February 2018). However, the right to work for asylum seekers does not have to be absolute. The Supreme Court indicated in its May 2017 decision that (i) it may be limited to particular employment sectors and/or (ii) the right to work for asylum seekers may only crystalise after a period of time.
Article 15 of the EU’s Reception Directive provides a limited right to work for asylum seekers, however, this is not absolute. In summary, once the Directive applies in Ireland, asylum seekers will have
- Freedom to work “no later than” 9 months, where a first instance decision not issued ( 15(1) RRD) and applicant not at fault for delay.
- Access to labour market must be “effective” ( 15(2) RRD)…..
- If the right to work is granted before appeal, it should continue where first instance decision has “suspensive effect” ( 15(3) RRD)
- EU Member States, “for reasons of labour market policies” may give priority to:
- EU citizens and EEA Nationals, AND,
- Legally resident non-EU citizens/EEA nationals.
In essence, the Reception Directive will allow national legal measures that employers have to first seek to hire EU/EEA citizens and legally resident non-EU citizens, before they can hire asylum seekers. It is highly likely that this will be adopted into Irish law. In terms of temporal restriction on access of asylum seekers to employment, varied practices exist within the European Union (see here, here, here and here). Greece and Sweden allow immediate access for asylum seekers to the labour market, in Italy asylum seekers have to wait two months, in several countries including Germany, asylum seekers must wait six months, and in France and other countries, asylum seekers must wait nine months.
However, it would be important to recognise the significant difficulties that asylum seekers can face in accessing the labour market due to ‘labour market policies’ or other reasons. For example: Asylum seekers may be required to have a concrete job offer before accessing employment (Germany); asylum seekers employment may be limited to certain sectors (Sweden, Switzerland, Austria, Cyprus). In some countries self-employment is prohibited (Germany) or restricted (Belgium). Significant language barriers and/or financial crisis impacts render the right to seek work wholly illusory (Spain, Greece, Italy, Poland, Hungary etc.). Significant bureaucratic hurdles can be placed in the path of asylum seekers seeking to enter work (many EU member states). This is in addition to significant difficulties relating to the recognition of prior qualifications that asylum seekers may have.
The practical implementation of the right to work for asylum seekers in Ireland could therefore face significant challenges. First, in the time and occupation restrictions that may be imposed by the Government or the Oireachtas. Second, due to practical issues that may arise such as language acquisition, or recognition of prior qualifications. How Ireland will face both of these key issues remains to be seen. Another issue that politicians/policy makers will have to face, is whether asylum seekers (who remain in direct provision) will have to make a contribution towards their accomodation costs. All these complex issues remain to be decided.