Judgment: 2017-11-30 · Court archive

Supreme Court set date to declare asylum work ban inconsistent with Constitution

The Court said it would make the declaration on 9 February after giving the State a brief period to take measures it considered necessary. It ruled out further hearings or monitoring of the State’s progress.

The Supreme Court ·

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The Court said it would make the declaration on 9 February after giving the State a brief period to take measures it considered necessary. It ruled out further hearings or monitoring of the State’s progress.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The Court emphasised that the usual course, when legislation is found unconstitutional, is to declare it so immediately and render it inoperative. It said departures from that rule must be exceptional, and that it had identified exceptional circumstances in this case.

The Supreme Court said it would make a declaration that the prohibition on people in the asylum system working was inconsistent with the Constitution on 9 February 2018, after giving the State a brief period to take any measures it considered necessary.

In an ex tempore judgment delivered by Chief Justice Clarke on 30 November 2017, the Court said it had already ruled that the absolute prohibition on working was unconstitutional “in certain respects”. It had not immediately declared the relevant laws unconstitutional, an exceptional course which left them in place while the Legislature considered how to address the problem.

The Court emphasised that the usual course, when legislation is found unconstitutional, is to declare it so immediately and render it inoperative. It said departures from that rule must be exceptional, and that it had identified exceptional circumstances in this case.

Counsel for the State had told the Court that a decision had been made on how to approach the matter and that plans were under way to take the necessary legislative measures for Ireland to opt into the Reception Directive. The judgment did not assess those plans or say what measures would be taken.

The Court said the time it had allowed was for the Legislature to make the necessary decisions. It had no role in considering the merits of the State’s choices or monitoring the pace of its progress. The Court said the balance of justice called for a relatively brief period before the declaration.

It made clear that 9 February was not a date for a further hearing or reconsideration. There would be no further submissions, letters or monitoring; the Court said it would make the declaration sought on behalf of the applicant that day.

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