N.v.H -v- Minister for Justice & Equality and ors [2017] IESC 35 (30 May 2017)

N.v.H -v- Minister for Justice & Equality and ors [2017] IESC 35 (30 May 2017)

An absolute and indefinite prohibition on employment for asylum seekers, as contained in s.9(4) of the Refugee Act 1996 (and s.16(3)(b) of the 2015 Act), is unconstitutional because it infringes the right to seek employment, which is part of the human personality and protected by the Constitution. While distinctions between citizens and asylum seekers are permissible, a blanket ban without temporal limitation is disproportionate and unjustifiable.

Citation
[2017] IESC 35
Parties
Applicant/appellant: N. V. H.; Respondent/respondent: Minister for Justice and Equality; Notice Party: The Attorney General; Notice Party: The Irish Human Rights and Equality Commission
Jurisdiction
Ireland
Judgment Date
30 May 2017
Procedural Posture
Constitutional Challenge / Judicial Review / Supreme Court Appeal
Outcome
Declaration of unconstitutionality in principle; order adjourned for six months for submissions on form of order.
Legal Topics
Right to Work, Asylum Seekers, Non Citizens' Constitutional Rights, Separation of Powers, Direct Provision, Proportionality, Standing (locus Standi)
Constitutional Law Immigration Law Human Rights Right to Work Asylum Seekers Non Citizens' Constitutional Rights Separation of Powers Direct Provision +2 more

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Parties

N. V. H.

Applicant/appellant

Minister for Justice and Equality

Respondent/respondent

The Attorney General

Notice Party

The Irish Human Rights and Equality Commission

Notice Party

Procedural Posture

Constitutional Challenge / Judicial Review / Supreme Court Appeal

Legal Issues

  1. 1 Whether s.9(4) of the Refugee Act 1996 (and s.16(3)(b) of the International Protection Act 2015) prohibiting asylum seekers from employment is unconstitutional
  2. 2 Whether non-citizens/asylum seekers can invoke constitutional rights, specifically the right to work
  3. 3 Whether the absolute ban on employment for asylum seekers is a permissible distinction under Article 40.1 of the Constitution

Ratio Decidendi

An absolute and indefinite prohibition on employment for asylum seekers, as contained in s.9(4) of the Refugee Act 1996 (and s.16(3)(b) of the 2015 Act), is unconstitutional because it infringes the right to seek employment, which is part of the human personality and protected by the Constitution. While distinctions between citizens and asylum seekers are permissible, a blanket ban without temporal limitation is disproportionate and unjustifiable.

Court Disposition

Declaration of unconstitutionality in principle; order adjourned for six months for submissions on form of order.

Orders

  • Court holds s.9(4) of the Refugee Act 1996 (and s.16(3)(b) of the 2015 Act) unconstitutional insofar as it imposes an absolute ban on employment for asylum seekers without temporal limit.
  • Consideration of the precise form of order adjourned for six months to allow parties to make submissions.