An Chúirt Uachtarach
The Supreme Court
N H V (Thiha)
THE MINISTER FOR JUSTICE AND EQUALITY
THE ATTORNEY GENERAL AND THE IRISH HUMAN RIGHTS COMMISSION
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 14th March 2016.
1. This determination concerns an application brought by the applicant, NHV, who will be called Thiha on this application because it is a common name in the relevant region, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 14th March 2016: judgment of Finlay Geoghegan J, Ryan P agreeing, Hogan J dissenting in a separate judgment;  IECA 86. This, in turn, was an appeal from the decision of McDermott J in the High Court, delivered on 17th April 2015.
2. The applicant Thiha was born in Burma in 1979 and arrived in the State on 16th July 2008, applying for refugee status on the following day. In December of that year he received a negative recommendation from the Office of the Refugee Applications Commissioner. He then appealed to the Refugee Appeals Tribunal. This was unsuccessful and the negative recommendation was made in July 2009. Judicial review proceedings commenced and the decision of the Tribunal was quashed by Clarke J on 16th July 2013. He thus re-entered the process and had a fresh hearing before the Refugee Appeals Tribunal. Should that outcome be negative his intention was to apply for subsidiary protection. His lawyers advised that this could take several years. He expressed distress and demoralisation about being unable to work, and remaining in direct accommodation in County Monaghan with a cash allowance of €19 per week. His fear is that it would take up to 10 years to complete his engagement with the protection process but that it would transform his existence should he be able to take up employment. He had been offered employment as a chef in the centre where he lives but this could not be taken up as he had no temporary permission to work in the State either pursuant to s. 4 of the Immigration Act 2004 or s. 9(1) of the Refugee Act 1996, as amended. Permission, in that regard, was refused by the Minister and a letter of 15th July 2013 refers to that decision. Another asylum seeker, from Cameroon, had sought the same relief and had pursued a judicial review in consequence of refusal. This applicant, however, was not before the Court of Appeal and is not involved in the appeal to this Court.
3. The issue raised before the High Court, and subsequently on appeal, was a claim that Thiha had an entitlement to work pursuant to s. 4 of the Immigration Act 2004 and pursuant to s. 9 of the Refugee Act 1996, as amended. McDermott J held:
4. Following a hearing before the Court of Appeal, the claim of entitlement to work was rejected. The reasoning of the majority can be seen from paragraphs 26 and 27 of the judgment:
The real complaint in this case concerns the delay which has occurred in processing the applicants’ asylum applications to a conclusion to all the various procedures which are open to the applicants. That delay may give rise to other grounds for relief or remedy is on the basis of a claimed breach of a right to reasonable expedition under Article 40.3 of the Constitution in the determination of the applications or a claim based on the breach of the right to good administration in respect of the processing of the applications in accordance with Ireland’s obligations under European Union law. However, I am not satisfied that it gives rise to an entitlement as part of the right to private life to be granted permission to work in the State or to have such an application considered.
The majority did not consider whether s. 9(4) of the Refugee Act 1996 is repugnant to the Constitution. Hogan J, in his dissent on this point, considered that the proper construction of that subsection gave the Minister no discretion to grant permission to work. Since the State had opted out of the 2003 and 2013 Reception Directives (Council Directive 2013/33/EU), which enables a limited entitlement of asylum seekers to work after an interval of time, the Charter of Fundamental Rights of the European Union did not assist the applicant. He would grant a declaration that section 9 (4)(b) of the 1996 Act is unconstitutional.
26. In my judgment it cannot be concluded that a person who is in the State for one purpose only namely to have as application for refugee startus decided and does not have any right to reside in the State as an immigrant, has a personal right protected by Article 40.3.1º to work or earn a livelihood within the State. A right to work or earn a livelihood within the State is inextricably linked to person’s starters within the State. A right to work cannot be exercised in vacuo. It is a right to work and earn a livelihood in the State
27. As confirmed by the Supreme Court in the Illegal Immigrants (Trafficking) Bill judgment at p. 382 the powers of the State to control aliens in their activities within the State reflects “an inherent element of State sovereignty over national territory long recognised in both domestic and international law”. One activity that is and was consistently restricted controlled is the right to work or earn a livelihood. Whilst I recognise that work or earning a livelihood may not be solely concerned with an economic activity but may also contribute to a person’s sense of dignity or well-being, nevertheless the inextricable link between a person’s status in the State and their right to work in the State is such that Article 40.3 cannot be construed as giving to an applicant for asylum a constitutionally protected right to work or earn a livelihood within the State.
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.2 establishes the Court of Appeal and under Article 34.5.3° sets out its appellate jurisdiction. This reads:
6. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
7. The decision of the Supreme Court under Article 34.5.6° is in all cases “final and conclusive.”
3° The Supreme Court shall, subject to such
regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court.
9. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
10. In the application for leave a notice of appeal filed by Thiha, it is emphasised that he suffers “distress, demoralisation, insomnia and feelings of depression by reason of his exclusion from seeking to enter the workforce and his subjection to the system known as direct provision which is ongoing, seven years and eight months since he applied for asylum.” This is said to affect “in a fundamental way the lives of a large number of persons present in the State who are subject” to this system and which “prohibits them from providing for themselves (or their children).” It is claimed that every human being has the right to work. It is claimed that the Charter is relevant despite the Act of 1996 not being passed to implement European Union law. The applicant seeks an urgent hearing on the basis that his mental and physical health are being undermined by delay coupled with an inability to work. He submits:
11. Emphasis is placed by the respondent Minister on the fact that the evidence before the High Court and the Court of Appeal was limited to the personal circumstances of the applicant Thiha. It is claimed that the arguments of the applicant “are wholly misconceived and arise from a fundamental misunderstanding of the question before the High Court and the Court of Appeal.” According to the respondent the issue previously determined is whether “a non-national, who was present in the state as an applicant for a declaration of refugee status and who had permission to remain in the State under section 9(1) of the Refugee Act 1996 (as amended) for the limited purpose of pursuing that application, had a right to work and earn a livelihood in the State under Article 40.3 of the Constitution.”
… the conclusion of Hogan J should be preferred to the majority ruling of the Court of Appeal. The applicant is, in principle, entitled to rely upon the constitutional right to earn a livelihood, or work, which is inherent in every human being (the right to seek to provide for oneself). As the majority judgments of the Court of Appeal acknowledged, that right may contribute to person’s sense of dignity and well-being. As such there appears to be no reason why a person present in the State for a legitimate purpose should not be entitled to assert such a right subject to lawful regulation.
12. The points raised in relation to Council Directive 2003/9/EC and its successor Council Directive 2013/33/EU do not arise as there was no implementation of European law through the Act of 1996. It is claimed that the rights of the applicant are “based exclusively in legislation”. There was no error of law, it is asserted by the respondent, in deciding, firstly, that the applicant had no right to work pursuant to statute while applying for asylum and, secondly, that the relevant section precluding permission in that regard was consistent with the Constitution.
13. On the question of a matter of general public importance, the applicant has urged that there are issues to be tried in relation to the right to work and the nature of the prohibition contained in the Act of 1996.
14. On the question of the interests of justice, these points are repeated and diffusely elaborated upon.
15. The Court is cognisant of the delays within the applications for asylum system. The Court is also cognisant that whether someone seeking asylum has an entitlement to seek to earn a livelihood for themselves or for their family is a matter of widespread importance which goes far beyond the personal interest raised by the applicant in this case. As to whether the legislative scheme governing applicant for refugee status precludes the relevant Minister or the Government generally from giving limited permission to work to such applicants, perhaps after a period of time, is open to question. If there is a fundamental bar, as identified in particular in the judgment of Hogan J, then the extent to which the rights guaranteed by the Constitution apply to non-nationals who are applying for refugee status or to be protected persons for subsidiary protection reasons, then the constitutionality of that bar may be called into question.
16. Therefore, the Court will allow an appeal. While the precise questions may need to be addressed as a case management conference, at the moment the appeal seems to centre on the following points:
17. It follows that the applicant is entitled to a further appeal: which may be exercised by allowing an appeal on the points set out above to this Court.
Where a non-national comes to the State and seeks refugee status, or subsidiary protection status does section 9(4) of the Refugee Act 1996, or any other provision of law, prohibit the Minister for Justice and Equality from granting permission to the person to work?
If there is such prohibition, is it nonetheless within the scope of governmental power to nonetheless grant permission to work pending the resolution of such an application?
If it is not within the scope of governmental power to grant permission to work pending the resolution of such an application and if section 9(4) of the Refugee Act 1996 prohibits the Minister for Justice and Equality from granting such permission, is that prohibition consistent with the Constitution?
AND IT IS HEREBY ORDERED ACCORDINGLY