The Court of Appeal has rejected an asylum seeker’s challenge to Ireland’s ban on work while an asylum claim is pending, but Judge Gerard Hogan dissented, concluding that the indefinite exclusion was unconstitutional as applied to him after more than seven years without a valid decision on his claim.
The judgment, delivered on 14 March 2016, records that NHV, identified in the body of the judgment as Mr V., arrived in Ireland on 16 July 2008 and applied for asylum the next day. His initial application and a later Tribunal decision were unsuccessful, but both later decisions were quashed following judicial review. A fresh Tribunal hearing took place in July 2015; at the time of the appeal hearing in February 2016, no decision had issued.
NHV had been living in direct provision at St Patrick’s Centre in Drumgask, County Monaghan, receiving €19 a week. In 2013, after receiving an offer of work as a chef at the centre, he sought permission to reside and work while his protection application was pending. The Minister refused. The High Court rejected his claims, and he appealed.
Hogan J. held that the Refugee Act 1996 barred asylum applicants in NHV’s position from seeking or taking employment before their applications were finally determined. He said the Minister had no statutory or inherent executive discretion to grant permission that would override that prohibition. He also concluded that EU Charter protections did not assist NHV, given Ireland’s opt-out from the relevant Reception Directives and the Charter’s provision for third-country nationals authorised to work.
On the constitutional claim, Hogan J. said non-citizens could in principle rely on the constitutional right to earn a livelihood. Applying the proportionality test, he found the ban’s open-ended duration—then exceeding seven years—struck at the substance of that right. He would have declared the relevant provision unconstitutional in its present form and as applied to NHV. He would not have granted relief under the European Convention on Human Rights.
Hogan J. expressly noted that his colleagues had reached a different conclusion on the constitutional issue and that he was in dissent. The source judgment identifies the Court of Appeal panel as Ryan P., Finlay Geoghegan J. and Hogan J. The majority’s detailed reasoning and the formal order are not set out in the supplied judgment text; the appeal was rejected, and Hogan J.’s proposed declaration was not the court’s outcome.