Employment Update: Ban on Asylum Seekers Working in Ireland Declared Unconstitutional

16 March 2018

In May 2017, the Supreme Court ruled that the prohibition on asylum seekers working in Ireland was unconstitutional. The Supreme Court made this decision in principle but gave the State six months in which to rectify the issue. In November 2017, the State sought more time to put measures in place.

Supreme Court declaration

The Supreme Court formally declared in February 2018 that the International Protection Act, 2015, which replaced the Refugee Act, 1996, was unconstitutional. The absolute restriction on asylum seekers working in Ireland, as a result, is no longer part of the law in Ireland. The Supreme Court, in coming to this decision, found that the right to work is “connected to the dignity and freedom” of an individual and could not be “withheld absolutely” from non-citizens.

The Supreme Court held that the State could have a policy in place restricting asylum seekers from entering employment. Where there is no maximum time limit in Ireland for an application for refugee status to be processed, the Court found that this could amount to an absolute prohibition on employment.

Next Steps

In advance of this declaration, the Government confirmed it has sought to opt into the EU (recast) Reception Conditions Directive 2013. This Directive has a compliance process which can last up to four months before Ireland can formally opt into the Directive. An implementation group has been set up to assess and establish a system for Ireland’s adoption of, and compliance with, the Directive. 

Once adopted, the Directive will provide asylum seekers with rights to work in certain circumstances as well as provisions for children's rights, health, education and material reception conditions for applicants.

For now 

Before the new system is established, interim measures have been adopted to provide asylum seekers with access to the labour market following the Supreme Court decision. These measures are as follows: 

  • all applicants will be able to access the Employment Permits System on the same basis as other non-EEA nationals, and
  • an administrative scheme will be established to allow for access to self-employment for eligible applicants, ie applicants nine months or more without a first instance decision

These interim measures have been heavily criticised as asylum seekers will have to find a job that pays a starting salary of at least €30,000 per annum, and one which their prospective employer must show they were unable to find a suitable EEA citizen to fill the position. Employment permit fees will also apply and the potential areas or industries for employment are also heavily restricted.

What to expect

The rights to work for asylum seekers under the Directive are quite restrictive. The Directive allows for a period of up to nine months before an asylum seeker can have any rights to work in the State. Ireland will be required to give effective access to employment for asylum seekers after nine months but does have freedom to set conditions in accordance with national law and may give priority to EEA citizens.

The full scope of the new system and whether Ireland will give asylum seekers access to employment beyond what is required under the Directive will become clear once the implementation group publish their proposals. Ireland is currently enjoying high levels of employment. Consequently, employers are experiencing some difficulty in sourcing staff.  This may be alleviated, however, as they are now able to hire asylum seekers under the Employment Permits Scheme. In addition, it is expected that further steps may be taken by the Government in the future to widen asylum seekers' access to employment.

For more information on this development and how it may impact your business, contact a member of our Employment & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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