An opinion of Advocate General de la Tour issued today (03/09/2020) has determined that Ireland is violating EU law on the right to work for asylum seekers. While the matter must now proceed to the Court of Justice of the European Union for final determination, this opinion nevertheless indicates that Irish law will need to be amended to comply with freely accepted EU legal obligations. My article on the issues that had to be determined in this case, published in May 2020, is available here.
Right to Work for Asylum Seekers
Irish law purports to prevent asylum seekers, potentially subject to a removal to another EU member state under the Dublin Regulation, from accessing the labour market. This prohibition applies regardless of whether any such removal will ever be effected and the length of the process for removal. The Irish High Court in K.S, referring the issue to the Court of Justice, was of the view that Ireland could restrict access to the labour market from those awaiting removal under the Dublin Regulation. However, the International Protection Appeals Tribunal (IPAT), in Iraq, was of the view that asylum seekers subject to an unexecuted removal to another EU member state, could, once satisfying all other conditions, be entitled to enter the labour market.
The Opinion of Advocate General de la Tour makes it clear that Ireland’s implementation of EU law on the right to work for asylum seekers is defective. AG de la Tour emphaises that all asylum seekers, no matter what procedure applies to their asylum claim, enjoy all rights under the EU Reception Conditions Directive in the Member State that they are presently based in. Only a first instance decision ( within 9 months) on the substantive asylum/protection claim, a final decision (of IPAT), or removal to the Member State responsible for determining the protection claim, can result in an asylum seeker not being entitled to access the labour market. As succintly summarised by AG de la Tour,
anyone who lodges an application for international protection with the authorities of a Member State is considered to have the right of access to the labour market, as provided for in Article 15(1) of that directive, even if that Member State is not responsible for examining the application and has not made a decision on the admissibility or merits of that application.(para. 62)
This opinion of AG de la Tour relies significantly on the exceptionally clear wording of legal rights for asylum seekers under several provisions of EU law, and indeed on previous case-law of the Court of Justice- that as long as a person seeking asylum is on the terrirory of a member state, s/he enjoys reception rights. This opinion now clarifies that this includes a right to enter the labour market after 9 months if no first instance decision rejecting the claim had been adopted or where no transfer has occurred under the Dublin Regulation. The ability to enter work is a fundamental right for asylum seekers, recognised under Irish constitutional law, other constitutional traditions, and a core corpus of international human rights law. As AG de la Tour notes, a right to work is
essential for realising other human rights [and] forms an inseparable and inherent part of human dignity(para. 84)
Relying in part on the Irish Supreme Court decision in N.H.V decision AG de la Tour noted that denial of work enforced vulnerability onto individuals. The significant length of time it takes to determine which EU Member State is responsible for considering a protection claim, coupled with the fact that transfers rarely occur in any event, formed a key narrative of the opinion. AG de la Tour also noted, that the needs of persons within the asylum/protection system, do not differ depending on which Member State is responsible for examining the protection claim.
Relying on Legal Rights is Not ‘Abusive’
Exceptionally concerning elements of the Irish High Court decision in K.S. were the arguments by Mr Justice Richard Humphreys that it was an ‘abuse of rights’ by an asylum seeker to:
(1) leave the first EU country they entered to claim protection in Ireland.
AG de la Tour noted that there is no obligation on any asylum applicant to lodge an asylum claim in the first EU state of entry. The EU state responsible for processing the substantive protection claim is solely determined by the Dublin Regulation. Mr Judtise Humphreys therefore had fundamentally misunderstood the purpose and process of the Dublin Regulation.
(2) any judicial challenge by a person seeking asylum to a Dublin transfer decision was an ‘abuse of rights’ that would justify Ireland’s approach to denying asylum seekers potentially subject to a Dublin removal, from accessing the labour market.
The European Union is founded upon principles that the rule of law must be respected. Withholding a right to work from a person potentially subject to a Dublin transfer, on the basis that they challenge this decision through courts, is fundamentally at odds with procedures established in law permitting judicial challenges to such decisions. As I noted in my 2020 article on these cases (prior of course to any CJEU ruling),
It is concerning that any judge would regard reliance on legal process to challenge administrative removal decisions as an ‘abuse of rights’p.260
In fact, this is much too tame. It is an absolute scandal that any judge would seek to punish asylum seekers through denying access to work on the basis that a legal challenge was being brought against a transfer decision.
Awaiting the Court of Justice Decision
The role of the Advocate General is to provide in essence an ‘advisory’ road map for the Court of Justice to ultimately make a decision in this case. Therefore for now, Irish law remains the same, and persons subject to Dublin transfer decisions have no entitlement to work in Ireland. Only where the Court of Justice makes a judgment, will this bind Ireland to comply. As I have previously argued,
In my view, it is essential that the CJEU reiterate that there cannot be differentiated applicants for international protection. Delays resulting from overburdened courts (and tribunals) in Ireland cannot justify the rejection of labour rights for persons subject to significant delays in the Dublin removal process. This is not a question on ‘lavishing’ rights on persons challenging proposed Dublin transfer orders. Rather, these are questions on dignity, respect and human rights, that must be guaranteed to all those seeking protection in the European Union.p. 263.
If the Court of Justice does follow this opinion, it may still be several months before their interpretation of EU law filters its way back to the High Court and International Protection Appeals Tribunal. Therefore, it may be some time yet before Irish law complies with European Union law.