These are my speaking notes for the presentation I gave at the Irish Refugee Council & ECRE conference Ireland’s opt-in to the EU Reception Conditions Directive (2013/33/EU). You can access my PowerPoint presentation here.
A. Towards a Rights Based Approach? Irish Law and Freedom to Work for Asylum Seekers
The Supreme Court decision on freedom to work for asylum seekers in N.H.V. took many by surprise, including me. The decision marked a noted steer-away from previous comments by judges on how the State can treat asylum seekers. In 2003, for example, the late Mr. Justice Adrian Hardiman stated (at para 298),
…the State makes available to [asylum] applicants an elaborate system of legal advice and free legal representation as well as social welfare or direct provision for their needs. All this is as it should be…
The High Court in 2015 and the Court of Appeal in 2016 dismissed the constitutional and broader human rights challenges to the absolute prohibition on asylum seekers working. The broad tenor of the decisions in the High Court and the majority in the Court of Appeal viewed asylum seekers rights being in abeyance, and any constitutional right to work not applicable to those in the protection status determination procedures. However, the Supreme Court in a unanimous seven judge decision delivered by O’Donnell J. held that the freedom to work goes to the “essence of human personality”. This freedom to work cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.
The Supreme Court ultimately however noted that there could be restrictions on the freedom to work for asylum seekers. Indeed, the Supreme Court stated that these distinctions could be “significant”. The Supreme Court stated that the Oireachtas and “(where appropriate) [the] executive” were best placed to identify the precise contours of the freedom to work for asylum seekers. The Supreme Court opined that the “pull factor” argument is a legitimate argument the Oireachtas may refer to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)
Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. It’s hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves” that comes from the absolute denial of the right to work.
Nevertheless, the key issue for asylum seekers, is that their access to the labour market be effective. and that limitations on access to the labour market should not render the freedom to work as incapable or ineffective.
B. A Right to Effective Access to the Labour Market & EU Law
Article 15 of the Reception Directive grants a right to work “no later than 9 months” where there is no first instance decision on the protection claim, and this delay cannot be attributed to the protection applicant. EU States can grant labour market priority to EU citizens, EEA citizens and legally resident third country nationals. Nevertheless, EU Member States have to ensure that protection applicants have effective access to the labour market. Therefore, unlike the constitutional freedom to work, by opting into the Reception Directive 2013, Ireland cannot limit access to the labour market under the Reception Directive by reference to claims (substantiated or unsubstantiated) of pull factors or impose conditions on right to effective access to the labour market that seek to protect the Common Travel Area.
The application of Article 15 of the Reception Directive 2013 varies significantly from Member State to Member State. For five states, access to the labour market may be granted nearly immediately (Greece, Portugal, Italy, Sweden, Norway). For four EU member states, access to the labour market is granted between one and three months (Austria, Bulgaria, Finland, Germany). Five EU Member States grant access to the labour market between four and six months (Belgium, Luxemburg, Netherlands, Poland and Spain). The remaining EU Member States grant access to the labour market between seven and nine months. However, the temporal limitations provide only one part of the story. Some Member States have no conditions as to type of employment a protection seeker might enter, other states have significant market access limitations, such as restrictions to certain employment sectors, some States have restrictions on access to self-employment, while other States will only grant permission to work if no EU citizen or legally resident third country national is available to do the job. [You can access the full particulars of the approach of each Member State to implementation of the EU Reception Directive here].
The United Kingdom is bound by the 2003 Reception Directive, therefore does not permit access for a period of 12 months. and access to the labour market is only granted where there is no first instance decision and is limited to skills shortage occupations only.
C. Developing the right to effective access of the labour market for asylum seekers in Ireland: The approach to date
With such varied responses to the implementation of the EU Reception Directive 2013, Ireland’s hands may not seem overly tied if wishing to adopt a strict policy on labour market access for asylum seekers. Yet we must admit that we do not know how Ireland will precisely transpose the EU Reception Directive 2013. The response of Ireland to the Supreme Court decision resulted in the establishment of the ad hoc executive scheme on the right to work. This ad hoc scheme simply has to comply with the Supreme Court decision, not necessarily the Reception Directive. The limitations of this scheme are significant. Asylum seekers must satisfy the same conditions for accessing the labour market as apply to non-EU citizens. There are well over 70 employment sectors excluded, asylum seekers or their potential employers will have to pay for the employment permit, and most jobs must pay over €30,000 per annum. It is also of note how gendered the employment sector exclusions are, significantly impacting on women.
Through Freedom of Information requests I have attempted to discover how this scheme came about. This, I believe, may shed light as to how the right to work will apply once the Reception Directive is in force. Unfortunately, as the right to work for asylum seekers is still under consideration, given that Ireland will opt into the EU Reception Directive 2013, most of the records that could shed light on how this scheme was arrived at have been refused.
The Inter-Departmental Task Force which created this scheme was comprised of representatives from several government departments, a representative from the Attorney General’s Office, and the Chief International Protection Officer from the International Protection Office (IPO).
The remit of the task force was to explore the feasibility for Ireland to opt in to the Reception Directive, but also to consider the potential impact of allowing asylum seekers the right to work on the integrity of the asylum system, and in particular on the Common Travel Area with the United Kingdom . From the FOI documents, the Inter-Departmental Task force met on at least four occasions, however also carried out much of its work electronically. The draft and final versions of the Inter-Departmental Task Force Report were unfortunately refused under the FOI legislation. However, we can piece together some clear information from the timeline of documents and the partial minutes of meetings of the Task Force that were made available.
First, the final report of the Task Force was seemingly completed in and around the end of October 2017. This was more than a month before the State asked the Supreme Court for more time in November 2017 to implement the freedom to work decision.
Second, the Task Force had decided at its first meeting in July 2017 that
…there appeared to be a number of advantages to Ireland opting into the Recast Reception Directive.
The Task Force noted that harmonising Ireland with other EU member States who permit asylum seekers to work may be a good thing . This issue was further explored in the second meeting, the Task Force had stated that there were no longer any ‘red line’ issues preventing Ireland’s opt-in to the Directive . The Taskforce met with representatives of the European Commission on 09 September 2017 where, it was noted,
Commission officials confirmed that there are no major obstacles that would prevent Ireland from opting in to the recast RCD…
Third, on the right to work, the Task Force were going to make recommendations on effective access to the labour market in light of how other European States dealt with this issue. At its second meeting, in August 2017 the employment permits system for non-EU citizens was discussed . At the third meeting on 30 August 2017 , the Taskforce came to two conclusions as regards the right to work:
- Ireland should seek to follow the approach of the United Kingdom in providing a very restrictive access to the labour market as it “will therefore be important not to establish a much more liberal system here in order to avoid creating any additional pull factor.”
- If asylum seekers are permitted to work, then access to the social welfare system must be as limited as possible. The Taskforce noted that asylum applicants (not in detention) in the UK received almost stg£36.95 per week (changed in January 2018 to stg£37.75). Ireland, the Taskforce determined should not have “a more generous welfare system” than the United Kingdom.
The final meeting of the Taskforce noted the following, based on a meeting with European Commission officials on 19 September 2017,
There are differences in how Member States provide effective access to the labour market for protection applicants. This will (as the Court Judgement also indicates) allow the State scope, if necessary, in setting reasonable conditions for accessing the labour market in Ireland- however, if access to the labour market in the State is too restrictive, Ireland would not comply with the [Reception Conditions Directive]
The Taskforce, at its final meeting on 22 September 2017, were unable to reach a consensus as to what effective access to the labour market for protection applicants would look like.
Given that this is very much policy in development, it remains to be seen what the right to effective access to the labour market will look like.
D. Conclusions: Ensuring Rights Based Labour Market Access
The UN Committee on the Elimination of Racial Discrimination has expressed concerns as regards a nine-month time limit in asylum seekers accessing the labour market. However, the CERD Committee welcomed changes in other legal systems that limited this time period for accessing the labour market to six months. The EU Reception Directive, I argue, is not wholly rights compliant. Yet, on the right to work for asylum seekers, it is probably not far off being rights compliant. However, the approach of the Taskforce, with its focus on pull factors, and not wanting to make Ireland an “attractive” asylum destination, seems to engage with issues not warranted under Article 15 of the Reception Directive 2013. For my part, a rights compliant freedom to work, acknowledging the limitations of the Reception Directive, would entail the following:
- Access to employment within six months of the initial application. This could be limited to persons whose asylum claim will be determined in Ireland, and who have not had a first instance decision. Hence, unfortunately, the State may limit freedom to work of those who may be removed from Ireland under the Dublin III Regulation;
- No fee is to be charged for an employment permit;
- In ensuring effective access to the labour market, the range of employment sectors should be expanded significantly. The current restrictions would, to my mind, not comply with the spirit or letter of Article 15 of the Reception Conditions Directive.
- The restrictions on labour market access, with preference to Irish/EU citizens or lawfully resident non-EU citizens, should not be imposed too strictly. Where limitations are imposed, it must not render it difficult for asylum seekers to access other aspects of the labour market.