25/01/2017

In Ireland, Supreme Court is considering right to work of asylum seekers



As Human Rights Watch formulated it “By not allowing asylum seekers to work, Ireland is an outlier among EU member states”.  



I reproduce hereafter an article from The Irish Times dated January 2017 on the denial of the right to work of asylum seekers in direct provision and provide my legal analysis from an international and European perspective.


 We would like in this post to express our support to the Irish campaigners who have long been campaigning for the removal of the governmental ban on the right to work of asylum seekers. The Irish governmental prohibition is  based on old- dated arguments that contradicts international human rights standards, human dignity, refugee law and is not supported by economical arguments. Let's hope that the Irish Supreme Court will be able to adopt a solution more in line with human dignity. 



Irelands' policy still reflects the former policy of many European States in the 1990s. Those States have de-coupled employment authorization from individual application claims for refugee protection in an attempt to deter migrants. Some of the European States were previously fearing that granting the right to work would have acted as a pull factor for bogus asylum seekers, promoted secondary movements within the European Union (‘EU’) towards those Member States granting the right to work and diminish possibility of return for rejected claimants. 

The experience of EU countries who have opted in to the EU reception Directives and granted the right to work at an early stage of the asylum determination process have proved that granting this right was not detrimental to the States' interest, on the contrary. Studies demonstrate that the 'pull-factor argument' has too often been over-estimated by politicians. Studies also concludes that voluntary return of failed asylum seekers increases in countries where the right to access the labour market in the host country is granted at the beginning of the international protection determination process. Working provides migrants with the financial resources and professional skills necessary to define a sustainable project in situations of return, allowing for durable return.
Denying access to the legal market of the host society to claimants for international protection is detrimentally costly for the host State, society and individuals concerned. When denied access to the labour market claimants are forced to rely entirely on State welfare support despite their working skills and willingness to financially contribute to their reception in the host country. The Belgium law is a good example on the contrary that it is possible to allow asylum seekers in direct reception to work. The Belgium law requires that they contribute when they can to partly financing their reception, provided they received regular and sufficient ressources via wages. 
Early access to the labour market also accelerates their integration in the host society once they are recognized refugees or beneficiaries of subsidiary protection. Promoting integration of claimants for international protection is therefore in line with domestic integration, anti- discrimination and poverty reduction policies targeting both refugees and migrants. 
Claimants for international protection being denied access to the labour market are also at the mercy of malpractices within illegal working sector. They belong to the ”forbidden workforce”, a workforce who is willing to access the legal labour market, often filling in labour shortages. Policies prohibiting asylum seekers / refugees from working only render the vulnerable more vulnerable to exploitation. 
Besides, the right to work is also a human right. States have the obligation to respect, enforce and protect asylum applicants’ right to work but for duly justified situations limited in time. States have an obligation to respect and refrain from undue intervention on the right to work of asylum seekers. States have a duty (i.e. a positive obligation under Maastricht guidelines n°15(g) on violations of the International Covenant on Economic Social and Cultural Rights and article 6 ICESCR) to remove obstacles to access working positions that claimants for international protection might encounter in their host country.
Obligation of State to refrain from banning access to work
States should refrain - directly or indirectly- to prevent an individual from having the opportunity to earn his/ her living, but for legitimate, reasonable, objective and proportionate reasons, under the obligation to ‘respect’ the right to work.
Article 4 ICESCR requires States to prove that limitations of the right to work are “determined by the law and only in so far as this might be compatible with the nature of the right [to work] and the other rights consecrated in the ICESCR, and solely for the purpose of promoting the general welfare in a democratic society”. Proportionality checks allow for controlling the legitimacy, legality and proportionality of the restrictions set by States to access to labour market of asylum seekers and refugees. The legitimacy of restrictions on the right to work of asylum seekers has already been contested in front of courts and human rights bodies through proportionality check in the United Kingdom or in South Africa.
The author of this blog strongly believes that a ‘capability approach’ can be used during this proportionality check. This approach allows for an evaluation of the human and economic cost of the restrictions by assessing the impact of restrictive policy of the capabilities of the individual. The judges or monitoring body should also check whether or not enhanced individual capabilities result in a growth of real incomes for the society at large. Preventing claimants for international protection to access rapidly the official labour market has indeed important humane individual and collective financial costs that should be avoided in a truly democratic society.
Judges and human rights monitoring bodies should only tolerate restrictions on access to labour market of claimants for international protection when the restrictions are limited in time, based on qualifications requirements, public order and sovereignty considerations and comply with international anti- discrimination law and standards, standards, and only where the State provides claimants with alternative material reception conditions such as housing and an adequate standard of living. 
The fact that a State provides refugees with direct provision ( should not be used by States as an argument to deny arbitrarily asylum seekers from their right to work. Human rights are universal and inalienable, indivisible, interdependent and interrelated. Each right contributes to the realisation of a person’s dignity through the satisfaction of his or her developmental, physical, psychological needs. The fulfillment of one right depends (wholly or in part) upon the fulfillment of other rights. Denial of one right invariably impedes enjoyment of other rights. Consequently, all human rights have equal status. The right to work cannot be compromised at the expense of any other rights, nor any other right be used to compensate for suppression of the right to work.
A State cannot deny access to a better standard of living and to the right to work due to the fact it provides direct provision
Can a State party to the ICESCR legitimately deny the right to work under article 6 ICESCR if the State is able to provide claimants for international protection with an adequate standard of living under article 11 ICESCR?
Article 11 ICESCR stipulates that: 'The States parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (we underlined this part).
Article 11 ICESCR requires States to provide claimants for international protection with an adequate standard of living. This standard of living may in practice be attained by direct provision of material reception condition by States to claimants, irrespective of the granting of the right to work. We argue that the right to work of asylum seekers is essential for refugees to exert their right to the continuous improvement of their living conditions (especially as living simply under direct provision means living under official poverty level).
The reluctance of some States to grant the right to work at an early stage of the international protection claim, combined with the inherent limits of this option alone (e.g. the difficulties to find a job) and the State of destitution of most claimants for protection make often direct support alone the preferred solution by many States, at least in the short and middle terms. At first- glance only one could consider that legal measures that deny the right to work claimants for international protection without time or scope limitation limits, but provides them with alternative material reception condition and ensure a decent standard of living are in coherence with article 11 ICESCR. 
Article 6 ICESCR must nevertheless be given by States, legal actors and human rights monitoring bodies its ‘own full legal useful effect’ (‘effet utile)’ in ‘good faith’ as any provision of an international treaty and in conformity with ESCRC General Comment n°9 on domestic application of the Covenant.

As the UNHCR formulated it:
The effectiveness and adequacy of a reception policy should not be judged solely in relation to the immediate material needs of the asylum-seekers, but also in terms of the real prospects it offers for the future - whether for the integration of those who will be recognised as refugees or the return and re-installation of the unsuccessful ones. A fair and effective reception policy should be premised on an understanding that asylum seekers are capable - if provided with the requisite tools of language, skills development and employment opportunities - of assuming responsibility for their own affairs and contributing towards the financial cost of their reception.
    Only a policy mix respects the full range of human rights
    From a legal, human rights- based and economic point of view, and in line with UNHCR recommendations, direct, indirect assistance and allowing asylum seekers to work should furthermore be combined ‘in a policy mix’ (meaning direct provision AND right to work should be granted at an early stage to asylum seekers without opposing them).
    Only this policy mix is able to ensure a balanced and adequate standard of living for claimants in need of protection. A ‘policy mix’ that combines direct material support (under article 11 ICESCR) with granting the right to work at an early stage of the refugee determination process (under article 6 ICESCR) provides for an efficient reception condition system. It grants the broadest possible range of human rights, fulfilling both articles 6, 11 and 12 ICESCR. This ‘policy mix’ is in line with the theory of the indivisibility and interdependence of all human rights.
    According to UNHCR:
    A reception policy should have as its principal objective humane, rights-respecting treatment that ensures that the life of an asylum-seeker is in all the circumstances one of viability and dignity. A reception policy should be organised in relation to the length of the asylum procedure. Where the procedures are unduly prolonged, asylum-seekers should be granted a broader range of social and economic rights and benefits.
    Article 6 ICESCR lays down an individual and collective right not to be arbitrarily and unfairly deprived of work freely chosen or accepted. This individual right to free choice of employment includes the right to seek a decent employment respecting the fundamental rights of the human person and to beneficiate from a suitable remuneration enabling reaching an adequate standard of living. Article 6 ICESCR also includes the right to seek for personal development and use one's skills in a suitable job.
    State's obligation to protect the right to work of asylum seekers
    States must take appropriate legislative, administrative, budgetary, judicial and other measures to stop and remedy violations of the right to work of claimants for international protection and adopt 'policy mix' approaches.
    For more information see : 

    Irish Times Article (24/01/2017): Supreme Court considering right to work of asylum seekers
     A seven-judge Irish Supreme Court is hearing an important appeal concerning the right to work of asylum seekers. The appeal is by a Burmese man who lived in direct provision for more than eight years before he recently got refugee status. The case is against the Minister for Justice with the Attorney General and Irish Human Rights and Equality Commission as notice parties.The man had argued, while living in direct provision on a €19 weekly allowance, he suffered depression, “almost complete loss of autonomy” and being allowed work was vital to his development, personal dignity and “sense of self-worth”.Shortly after coming here in late 2008, he was refused refugee status but appealed. After the High Court found errors in how his applications were decided, there were rehearings before the Refugee Appeals Tribunal which last September granted him refugee status.That means he can now legitimately seek employment and the State says the Supreme Court should therefore dismiss as pointless his appeal against the Court of Appeal’s two-to-one rejection of his case. 
    When the appeal opened on Tuesday, Michael Lynn SC, for the man, urged the court not to declare it moot and decide the core issues. He argued the Minister for Justice has discretion to permit asylum seekers in a position similar to the man to work, including on a temporary basis.Counsel disputed the Minister’s claims that could act as an incentive for others to enter the State. No “sane person” would want to live in direct provision for more than eight years, he submitted.Feichin McDonagh SC, for the commission, argued the Minister had discretion to permit an asylum seeker to work and there was no “absolute” legal bar on the Minister doing so.Opposing the appeal, Nuala Butler SC, for the Minister, argued a foreign national present in the State on a conditional basis had no constitutional right to work.In exchanges with counsel, some of the judges queried if asylum seekers have constitutional rights including to bodily integrity and fair trial, why they have no right to work. Ms Butler said asylum seekers here have certain rights but not the same right to work as Irish citizens. The State was entitled to control permission to enter its territory and to control foreign nationals while they are here, she said. 
    She also submitted the man’s case involved “unusual” and “extraordinary” delays which she said are not representative of the experience of the vast majority of asylum seekers.“Hard cases make bad law” and the State is concerned permitting a right to work to some asylum seekers would lead to migrants “flooding” into the State, she said. Government policy was not to grant a right to work to those awaiting decisions on international protection applications. 
    Among the issues raised in the case are whether section 9.4 of the Refugee Act, which prohibits the Minister granting permission to work pending a decision on applications for asylum/protection, prevents the Minister or Government granting permission to work to a person seeking asylum or protection. If the Government has no such power, the court is asked to decide if section 9.4 is constitutional.In dismissing his case, a majority Court of Appeal ruled the open-ended nature of the ban on work did not mean section 9.4.b of the Refugee Act is unconstitutional and it rejected as “too broad a proposition” that non-Irish citizens enjoy the same general rights as Irish citizens. 
    Mr Justice Gerard Hogan disagreed. He ruled the man has a personal right under article 40.3 of the Constitution to work here and section 9.4.b unconstitutionally struck at the “very substance” of that constitutional right. The Supreme Court appeal has been adjourned to resume on February 15 th.
    We invite you to read  our previous articles on the topic of the right to work of asylum seekers in Ireland

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