A man living in direct provision for more than seven years has appealed the Minister for Justice’s refusal to consider his application for permission to work here.
The man came here from Bangladesh in 2008 and has been in direct provision since awaiting a final determination of his application for refugee status, the three judge Court of Appeal heard.
In a sworn statement, he said he has suffered “almost complete loss of autonomy” in direct provision, was on medication and suffered insomnia and depression. He was previously told he would be considered for a position as a chef if available to work, he said.
It is “vital to my development, personal dignity and sense of self worth to be able to work and be self supporting.”
The man's appeal against the High Court's rejection of his case against the Minister and the State concluded on Wednesday. Mr Justice Sean Ryan, who earlier noted the appeal has "substantial implications", said the court was reserving judgment.
The case centres on interpretation of Section 9 of the Refugee Act 1996 and Section 4 of the Immigration Act 2004.
The State argues a prohibition on asylum seekers working set out in Section 9 of the 1996 Act cannot be avoided by any discretion available to the Minister under Section 4 of the 2004 Act.
‘Trapped’
Outlining the appeal, Michael Lynn SC, for the man, said his client is “trapped” here because, due to the Dublin Regulation governing asylum applications, he cannot go to any other EU country to apply for refugee status.
The Minister has discretion under Section 4, or has implied executive power, to consider the man’s application for temporary residence and a temporary employment permit, he argued.
If there was no such discretion, the relevant laws breach the man’s rights under the Irish Constitution, EU law and the European Convention on Human Rights, he submitted.
The Minister was not entitled to disproportionately limit a human being’s need to work and inherent right to provide for themselves and any “absolute prohibition” on the right to work, no matter what a refugee applicant has been through, was unconstitutional.
He was not suggesting every refugee applicant has the right to work and the Minister could, for example, exercise discretion in favour of applicants here for more than five years, counsel added.
In opposing arguments for the Minister, Nuala Butler SC said there was a “clear policy rationale” behind the Section 9 prohibition on asylum seekers working which the courts must respect.
‘Pull factor’
There was a “big pull factor” evidenced by a three-fold rise in asylum applications when a right to work was permitted and, if this appeal succeeded, every asylum seeker who wished to work could apply to the Minister, she said.
The Section 9 prohibition means the man cannot seek employment and the Minister cannot consider his request for temporary permission to remain here and work, she argued.
The man’s permission to enter was as an asylum seeker subject to Section 9, including the condition he cannot seek employment. Section 4 is intended to be operative when a person, at point of entry, is seeking leave to remain in the State, she said. It did not permit the Minister to grant temporary permission to remain to a person already inside the State who had no pre-existing permission under Section 4.
Ms Butler also argued a third country national has no free standing right to work here or in any other EU member state.
Earlier, the court heard the man sought asylum within 24 hours of arriving here in summer 2008. The December 2008 rejection of his application was upheld in July 2009 by the Refugee Appeals Tribunal (RAT). He sought judicial review and the High Court in 2013 quashed the RAT decision. A rehearing took place in July 2015 on which a decision is pending.
The court heard a similar appeal by another direct provision resident who could not take up a job offer did not proceed because that man has secured refugee status after seven years here.
