The Court of Appeal has dismissed an appeal by an anonymised Burmese asylum seeker who challenged the refusal of permission to work while his refugee application remained undecided.
The appellant arrived in Ireland on 16 July 2008 and applied for refugee status the next day. By May 2013, his application had not been determined. After earlier successful judicial reviews led to the matter being returned to the Refugee Appeals Tribunal, he remained in direct accommodation and was experiencing distress and demoralisation. He had a potential job offer and sought temporary permission to reside and work under immigration legislation or through the Minister’s executive discretion.
The Minister refused the request, stating that section 9(4) of the Refugee Act 1996 prevented permission being granted. The appellant obtained leave to seek judicial review of decisions dated 13 June and 15 July 2013. He argued, among other things, that the Minister had unlawfully restricted her discretion and that the statutory bar violated constitutional and human rights protections.
The High Court dismissed the application in April 2015. The appeal raised questions including whether the Minister had discretion to grant permission under the Refugee Act or executive powers, and whether the statutory restriction breached the Constitution, the EU Charter or the European Convention on Human Rights.
In the Court of Appeal, Ms Justice Finlay Geoghegan agreed with the conclusions and reasoning in Mr Justice Hogan’s judgment on the issues, except for his conclusion that the appellant had a constitutional right to work or earn a livelihood protected by Article 40.3. She addressed that constitutional question in her judgment.
She held that the appellant’s status was that of an asylum applicant permitted to remain while his refugee application was decided, and had not changed through the passage of time. Although he was not unlawfully present, she concluded that Article 40.3 did not give him a personal constitutional right to work in Ireland. Because she found no such right, she said there was no basis to find section 9(4) repugnant to the Constitution.
The judge acknowledged the delay in processing the asylum application but noted that the appellant had not sought relief in the judicial review proceedings on delay alone. The court dismissed the appeal. The judgment does not grant permission to work or determine the asylum application.