The High Court dismissed a family’s judicial review challenge to decisions refusing the parents permission to work while their infant child’s international protection application was pending. Mr Justice Garrett Simons held that the child had no right to work which his parents could exercise on his behalf, and that they had no derived right to work to support him.
The parents, nationals of a non-EU state, had previously applied for international protection but their applications were unsuccessful. Before the period at issue, they were subject to unexecuted deportation orders. They received Stamp 4 permissions allowing them to live and work in Ireland from 30 September 2022. The case concerned an earlier period when they were not permitted to work lawfully.
The child was born in April 2021 and applied for international protection through his mother on 26 July 2021. In November 2021, the parents sought labour market access based on that application, arguing they could exercise the child’s right to work vicariously. Their applications were refused on 23 March 2022. The child’s application was later successful: on 19 January 2023, the Appeals Tribunal recommended that he receive a refugee declaration.
The State argued that the judicial review had become moot after the parents’ status was regularised. The judge decided to determine the substantive issues because a damages claim remained a concrete dispute and the asserted entitlement was short-lived, meaning similar cases could otherwise “time out” before reaching a hearing. The parents sought Francovich damages for an alleged breach of EU law. The court did not decide whether they qualified for damages; it said that question would arise only if the refusals were first found invalid.
On the merits, the judge found that the distinction the parents advanced between access to the labour market and a right to work was artificial. The relevant EU directive did not create an abstract labour market right for a child too young to work under national law, nor did it allow a family member to exercise such a right for the child. The court also rejected a derived right based on the child’s right to reside during the application and receive an adequate standard of living. It said the directive places responsibility on the State to provide adequate reception conditions for a minor applicant.
The judgment noted affidavit evidence that the parents received social protection payments and could rent private accommodation during the relevant period. It found no evidence that the child’s needs had gone unmet. The court dismissed the judicial review. Costs were left for a later hearing, listed for 31 March 2023 at 10.30 am.