The Minister for Justice and Equality has provided a briefing note (Briefing Note for Oireachtas Members – Reception Conditions Directive 11.1 .2018) on Ireland’s opt-in to the EU’s Reception Directive. The briefing note, as expected, suggests that secondary legislation, in the form of a statutory instrument, will be used to place the EU’s Reception Directive on a legislative footing within Ireland.
Last week on this blog I explored the legal effect that the right to work for asylum seekers in the EU’s Reception Directive may have on asylum seekers in Ireland. The Minister for Justice has now confirmed that from 09 February 2018, until Ireland opts into, the following administrative arrangements will apply.
Asylum seekers entering employment prior to Reception Directive opt-in: Asylum seekers will have a right to enter employment. Asylum seekers will have to apply for a permit under the Employment Permits Act 2003 (as amended). The briefing note states:
The normal fee and conditions of employment (including the permitted sectors of employment) will apply as for all other Third Country Nationals.
Fees for Asylum Seekers
This in essence will mean very few asylum seekers will be able to make individual applications to work. The fees that asylum seekers may have to pay will range from €500 to €1000. The Minister for Justice may have confirmed to Clare Daly T.D. that this fee will be waived (hat-tip: Luke & Conor). However, I am not sure that this now is the case….
Unfortunately, a careful viewing of the Committee discussion has left me even more confused. You can watch Committee proceedings discussing Ireland’s opt in to the Reception Directive here.
On at least two occasions, the Minister for Justice, Charlie Flanagan states that asylum seekers will not be permitted to work until the Reception Directive forms part of Irish law. This will be news to the Supreme Court who had given the Government until 09 February 2018 to ensure that asylum seekers had the freedom to work.
Only on the third time of repeating himself, was the Minister promoted to mention that the ’employment permits’ scheme will operate from February 10th 2018, until such time as Ireland formally opt’s in to the EU Reception Directive (the ‘interim period’). The Minister was asked a direct question by Clare Daly TD: will asylum seekers, or their employers, have to pay the €500-€1000 fee for being granted a work permit in the ‘interim period’? The Minister responded by saying that the fee will not be payable AFTER Ireland opts-in to the EU Reception Directive. There it seems (and I could be wrong) that the information in the Briefing Note applies, and that asylum seekers will have the most limited right to work possible until Ireland formally opts into the EU Reception Directive.
There also is a total lack of clarity as to what the right to work for asylum seekers will look like once the EU Reception Directive applies in Ireland. The Minister mentioned that a ‘taskforce’ is looking at this. The only certainty is that once the EU Reception Directive becomes part of Irish Law, the €500-€1000 fee cannot be charged to asylum seekers.
Overall, the Minister seemed none to sure about what was happening. I’ve tried to unravel some of the Minister’s statements on a Twitter thread here. Unfortunately, Ministers, and even Justice officials, not being fully on top of asylum law and policy brief is is hardly unusual in Ireland. All in all, just 21 days out from the Supreme Court confirmation that the absolute prohibition on the right to work for asylum seekers will be struck down as unconstitutional, the approach of the State is none too clear.
Asylum seekers will not be granted a permit to enter into ANY of the following 60 plus occupation areas. See the full, and very extensive, list of all excluded occupation areas here.
In addition, generally the starting salary for the position must be €30,000 per annum. In addition, an employer will have to show that s/he advertised and was unable to find an EU citizen (or person with immigration permission and full employment rights) to fill the role that may now be offered to an asylum seeker.
Self Employed Asylum Seekers
The Minister for Justice will also adopt an administrative scheme to permit asylum seekers seek permission to engage in self-employment. This will be for a renewable period of six months. Asylum seekers can only seek to become self employed if they have not received their first instance decision from the International Protection Office within nine months.
That fees will not be waived for asylum seekers, nor employment sector restrictions lifted, is exceptionally disappointed, is mean-spiritied, and in no way in compliance with Ireland’s international human rights obligations. Do these restrictions conform with the Supreme Court’s judgment on the right to work for asylum seekers? The Supreme Court decision on the freedom to work as a constitutional right is a complex one. For the first half of the decision, O’Donnell J. emphasises that freedom to work is inherent within human (as opposed to citizen) dignity. However, the Supreme Court also noted that the Oireachtas could potentially limit the categories of employment that asylum seekers entered into. Given that the Minister for Justice is applying the Employment Permits Act 2003, it could be argued that these categories and significant limitations do not offend the constitutional freedom to work.
I had thought that the right to work that would be extended to asylum seekers would be limited. I unfortunately did not think it would be this limited or limiting. However, there is still time. At a minimum, asylum seekers should not be charged a fee for seeking to enter employment NOR should there be restrictions in the type of job that an asylum seeker may wish to take up (other than any qualification/educational requirements that should be applied to all potential job applicants).
The fight for an actual right to work for asylum seekers will have to continue!