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NVH v Minister for Justice & Equality: Absolute ban on international protection applicants working is unconstitutional

On 30 May 2017, a 7-Judge Supreme Court unanimously held that the absolute ban on protection applicants working is unconstitutional. The ban was contained in the now repealed section 9(4) of the Refugee Act 1996, but remains in section 16(3) of the International Protection Act 2015.

Writing on behalf of the Court, Mr Justice O’Donnell held:-

“21 Accordingly, in principle I would be prepared to hold that in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) (and re-enacted in s.16(3)(b) of the 2015 Act) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.”

The Court’s conditional order was meant to allow the Government six months to adopt measures that would correct the situation.

 

According to an article published in the Irish Times last week, the Minister for Justice and Equality is to bring a memo to Cabinet, proposing that protection applicants who spend more than nine months in the Direct Provision system without having their case decided on are to be given the right to work, become self-employed or access training. The precise details of this right to work for protection applicants remain to be disclosed. They will presumably be published before the case is back in the Supreme Court later this month or early December.