O’Donnell J. of the Supreme Court concluded that the absolute ban on asylum seekers seeking employment under section 9(4) of the Refugee Act 1996 was contrary to the constitutional right to seek work where the asylum process had no time limit. He proposed adjourning consideration of the order for six months and inviting further submissions. The judgment does not record a final order on the constitutional challenge.
The appellant, identified only as N.H.V., was a native of Burma who arrived in Ireland in July 2008 and applied for refugee status the following day. His applications were refused, and decisions were later quashed on judicial review or by consent. At the time of a further restart of the process, he had spent almost six years in Direct Provision in County Monaghan and faced further delays. He had been offered work at the accommodation facility in May 2013. The Minister refused permission, taking the view that section 9(4) prohibited the employment.
The High Court dismissed his challenge, and a majority of the Court of Appeal upheld that decision. Hogan J. dissented on the constitutional issue. After the Supreme Court granted leave to appeal, N.H.V. was granted refugee status. The State argued that the appeal was moot. O’Donnell J. held that the challenge to the Minister’s decision was substantially moot because N.H.V. was no longer an asylum seeker and could work. He nevertheless decided the constitutional issue, citing the broader public importance of the question and the likelihood it would recur.
O’Donnell J. rejected arguments that immigration law or executive discretion gave the Minister a general power to permit work despite section 9(4). He considered that using such a power solely to circumvent the statutory ban would be unlawful. He also agreed that no issue arose under the EU Charter or the European Convention on Human Rights.
On the constitutional question, he reasoned that freedom to seek work formed part of human personality and could not be withheld absolutely from non-citizens. He accepted that the State could distinguish between citizens and asylum seekers, including to manage the labour market and discourage applications made to obtain work. But he found that an unlimited ban could exclude an asylum seeker from work indefinitely, and that the appellant’s more than eight years in the process had reached a point where the distinction could no longer justify that exclusion.
The judgment records O’Donnell J.’s conclusion and proposed next step. It does not establish from this source what order the Court ultimately made after the proposed adjournment.