The Supreme Court has upheld rules excluding international protection applicants from employment across much of Ireland's public sector while their protection claims are being decided.
The appeal was brought by AM, a pharmacist from a Middle Eastern country who applied for international protection after arriving in Ireland in January 2023. He obtained Labour Market Access Permission from August 30, 2023, but the conditions attached to it prevented him from seeking employment with bodies listed in Schedule 6 of the 2018 Reception Conditions Regulations.
Those bodies include the civil service, local authorities and many other public-sector entities, including HSE and other public hospitals. AM said the restriction prevented him from pursuing work in public-sector pharmacy, his preferred area of employment.
During the seven weeks in which the restriction affected him, however, AM obtained work as a pharmacy technician in a private retail pharmacy earning €22 an hour. He was granted refugee status from October 19, 2023, after which he became entitled to seek employment on the same basis as an Irish citizen.
AM argued that excluding the public sector breached both his constitutional right to seek employment and EU rules requiring international protection applicants to have "effective access" to the labour market.
Mr Justice Maurice Collins, delivering the Supreme Court judgment, rejected both arguments and affirmed the High Court's earlier ruling.
The court held that the constitutional right recognised in the 2017 NHV judgment is significantly more limited than a citizen's employment rights. The State may impose substantial restrictions, provided it does not effectively remove the right to seek work altogether.
On EU law, the court said "effective access" must be assessed objectively and across the labour market as a whole, not by whether an applicant can obtain a preferred job matching individual qualifications or earning expectations.
The evidence showed that AM had been able to obtain responsible, reasonably paid private-sector employment. The court therefore found no basis for concluding that the public-sector exclusion rendered labour-market access ineffective. His appeal was dismissed, and the court also declined to refer the issue to the EU Court of Justice.