Author
In July 2018, Ireland transposed the recast Reception Conditions Directive following a decision of the Supreme Court in N.V.H. v Minister for Justice and Equality in which the Court held that an absolute ban on employment was a breach of the right to dignity under the Irish Constitution. With the legislative ban on employment struck down as unconstitutional, the main impediment to transposition of the Directive was removed.
The Reception Conditions Regulations permits a person who has been waiting more than six months for a first instance decision to apply for labour market access.[1] Labour market access consists of permission to be self-employed or to be employed in most sectors of the economy, with an absolute ban on employment in public bodies, such as the Civil Service, Local Authorities, or companies/entities majority owned by the Government or established by way of legislation.[2]
As a result of the COVID-19 pandemic, in December 2021, the Minister for Justice, Helen McEntee announced a further and final temporary extension of immigration and international protection permissions, until 31 May 2022. This extension applied to permissions that were due to expire between 15 January 2022 and 31 May 2022 and included permissions that had already been extended by the previous eight temporary extensions since March 2020.[3] The extension also applied to labour market access permission whereby an applicant had not yet received a final decision on their international protection claim and the applicant held a current, valid permission or a permission that had already been extended under the previous notices issued.[4]
In practice, labour market access applications are accepted once a person has been waiting for five months for a first instance decision in order to prevent delays once the six-month period has elapsed.
Once a person has been granted permission prior to receiving a first instance decision, that permission lasts throughout any subsequent appeal process. However, if a person has already received a first instance decision, they will not be able to access the labour market no matter how long they may be waiting for a resolution to an appeal. This means that, despite the right to work constituting a significant positive development for newly arrived protection applicants, those who had been in Ireland the longest and who had already received a first instance decision did not benefit from this change.[5]
On 21 October 2020, the government announced revised arrangements for access to the labour market, including a reduction in the waiting period from nine months to six months from the date of first application for international protection.[6] Further changes include an increase in the validity period of permission to access the labour market from 6 months to 12 months and expanding access to include applicants who received a first instance recommendation prior to the European Communities (Reception Conditions) Regulations 2018 coming into force, provided they meet the criteria established in the Regulations.[7] These changes came into effect from 26 January 2021.[8]
In 2019, the Irish High Court referred to the CJEU a preliminary ruling on a number of questions, with the aim of clarifying the right to access the labour market for international protection applicants in the Dublin procedure. On 14 January 2021, in a judgment delivered in the case of K.S. & Ors v. The International Protection Appeals Tribunal & Ors, the Court of Justice of the European Union determined that Article 15 of Directive 2013/33 (Reception Conditions Directive) must be interpreted as precluding national legislation whereby such legislation excludes an applicant for international protection from accessing the labour market on the basis that the applicant has been subject to a transfer decision under the Dublin III Regulation.[9] Following the ruling, persons subject to a Dublin transfer have the right to enter the labour market in Ireland whereby no decision on their substantive protection claim has issued within six months and the individual is not responsible for the delay in progressing their transfer. Taking legal action to challenge the transfer will not be regarded as a delay attributable to the applicant in the circumstances.[10] Approximately 223 judicial review cases, involving 281 persons, were stayed pending the decision.[11]
There are a number of conditions applying to permission to access the labour market with a criminal sanction applying in the event of a breach. An applicant may not employ any person or enter a partnership with another person. An applicant may not be employed or seek to be employed or enter a contract for services with any of the prohibited bodies.[12] An applicant must also inform the Minister of their income and must inform the Minister if they become self-employed or if there is any change to their self-employment.[13]
In addition, employers must inform the Minister within 21 days of employing an asylum seeker in possession of labour market permission and must inform the Minister within 21 days of that employment ceasing.[14] The employer must also maintain records of the particulars of employment including copies of the person’s permission to work, the duration of employment, and remuneration paid. Employers must keep these records for three years from the date on which the applicant ceases to be an employee and must provide a copy of these records within ten working days. These additional obligations on employers, which do not apply to other employees, are administratively onerous and may make it less attractive to employ a person seeking asylum. Indeed, the Irish Refugee Council has received reports of employers not recognising the official documents granting permission to work and not employing protection applicants on this basis. This has been echoed by media reporting on the topic in July 2019.[15] It is an offence under the Regulations to fail to comply with these requirements, with an employer potentially subject to a fine of €5,000 and/or a prison term of 12 months.[16]
An applicant who breaches the Regulations on access to the labour market is guilty of a criminal offence, which carries a fine of €1,000 and/or a prison term of one month.[17] This would also affect their asylum application.
From 30 June 2018 – 1 January 2023, a total of 15,136 applications for labour market access have been granted by the Department of Justice. Of these applications, approximately 80% (12,181) have been granted and 2,731 have been refused. Last year, 4,773 first permits were issued and 1,603 renewals were granted.[18]
In practice, protection applicants face significant practical difficulties in accessing the labour market. For instance, many applicants previously experienced barriers in accessing bank accounts due to difficulties in producing satisfactory identity documents for the purposes of anti-money laundering requirements. In April 2021, the Irish Human Rights and Equality Commission announced that following formal engagement with Bank of Ireland, the Bank had agreed to accept State-issued identity documentation, therefore enabling asylum seekers to open a bank account. The Commission used its statutory powers through a formal process known as an Equality Review.[19] The five major banks in the State – Allied Irish Bank, Bank of Ireland, Permanent TSB, KBC and Ulster Bank -, subsequently confirmed that from 13 May 2021, international protection applicants will be able to provide alternative documentation to prove their identity when seeking to open a bank account.[20]
People in the asylum process also face difficulties in obtaining a driver licence. The Temporary Residence Certificate provided to people seeking asylum is the only official document given to people before they receive their status and this is specifically stated as not constituting an identity document and, therefore, cannot be relied upon for the purposes of obtaining a driving licence which inhibits the access to employment, particularly where people live in remote rural areas.
In January 2020, the Workplace Relations Commission found that denying the applicant the means to learn how to drive and therefore earn a living was “indirect discrimination”.[21] In this case, the individual’s application for a learner driver licence was refused after he provided his asylum seeker’s Temporary Residence Certificate, his public services card, a copy of his passport and his permission from the Minister for Justice to access the labour market. The State appealed the decision of the Workplace Relations Commission and on appeal, the applicant, whose circumstances had changed, sought only to uphold the award of compensation. The appeal was resolved on the basis that the appeal would be allowed but the RSA would make a payment of €4,000 to the applicant.[22]
Subsequently in July 2020, the Dublin Circuit Court overturned a separate Workplace Relations Commission declaration that the refusal to issue driving licences to asylum seekers was discriminatory. This case concerned an applicant who held a full driving licence in her country of origin. She requested a learner’s permit so that she could learn to drive in Ireland with a view to accessing better employment and childcare facilities. Justice O’ Connor concluded that, on the basis that the respondent was in the State for the purposes of making an application for asylum, the status of her residence meant that she did not enjoy the same rights as an Irish citizen, Moreover, he did not accept that the state had discriminated against the respondent on account of her race in refusing to provide her with a licence.[23]
On 21 October 2020, the Department of Justice announced that legislation would be brought forward by the Minister for Transport prior to year- end in order to ensure access for asylum seekers to driving licences.[24] In February 2021, the Minister of State at the Department of Transport confirmed that officials in the Department of Transport and the Road Safety Authority are working in close collaboration with various stakeholders to ensure the provision of drivers’ licences to asylum seekers.[25] However, prior to legislation being implemented, two international protection applicants successfully challenged by way of judicial review a decision by the Road Safety Authority (the ‘RSA’) to refuse them permission to exchange their full driver licences, issued by their country of origin, for Irish licences. The RSA claimed that the applicants were required to produce evidence that they were lawfully resident in Ireland, but had not done so, nor could not do so on the basis that their residence in the State as international protection seekers could not be regarded as ‘lawful’ within the meaning of the Road Traffic Regulations (Licensing of Drivers) Regulations 2006. Mr. Justice Heslin, giving judgment, stated that “the applicants’ presence in this State has, at all material times, been, as a matter of fact, lawful. Their permission to remain may well be on very strict terms and for a specific purpose but it is nonetheless lawful.” He concluded that he was “entirely satisfied that the applicants are entitled to declaratory relief that the 2006 Regulations do not require them to establish any further right of residence than they currently have”.[26] The Government has indicated that legislation will be required to give effect to the judgment; however, at time of updating, this was yet to be implemented.
[1] Regulation 11(3) Reception Conditions Regulations 2018.
[2] Regulation 11(9)(a) and Schedule 6 Reception Conditions Regulations 2018.
[3] Department of Justice, Minister McEntee announces further temporary extension of immigration permissions, 21st December 2021, available at: https://bit.ly/3HSx3iL.
[4] Immigration Service Delivery, Impact of Coivd-19 on Immigration and international Protection: Frequently Asked Questions, last updated 21st December 2021, available at: https://bit.ly/3nevVxY.
[5] Movement of Asylum Seekers in Ireland (MASI), Submission to Justice & Equality Joint Committee, 27 May 2019, available at: https://bit.ly/2VHPUI2.
[6] Department of Justice, Report of the Advisory Group on the Provision of Support including Accommodation to Persons in the International Protection Process, 21 October 2020, available at: https://bit.ly/3qh0v9C.
[7] Irish Legal News, ‘Restrictions on asylum seekers access to work to be eased’, 22 October 2020, available at: https://bit.ly/39u6t00.
[8] Department of Justice, ‘Minister McEntee announces reduced 6 month waiting period for international protection applicants to access work’ 28 January 2021, available at: https://bit.ly/3pGZ6Iz.
[9] Case C-322/19 and C-385/19, K.S. and Ors v. The International Protection Appeals Tribunal and Ors, ECLI:EU:C: 2021:11, available at: https://bit.ly/2NndwQL.
[10] ibid.
[11] Minister for Justice and Equality Charles Flanagan, Response to Parliamentary Question No 382, 3 June 2020, available at: https://bit.ly/36eiiqr.
[12] Regulation 11(9)(a) and (10) Reception Conditions Regulations 2018.
[13] Regulation 11(9)(b) and (c) Reception Conditions Regulations 2018.
[14] Regulation 14 Reception Conditions Regulations 2018.
[15] Dublin Inquirer, ‘People Seeking Asylum Say They’re Funnelled Into Low-Paid Temp Work, Unable to Use Their Skills’, 3 July 2019, available at: https://bit.ly/2WaV1Qm.
[16] Regulation 15(2) Reception Conditions Regulations 2018.
[17] Regulation 15(1) Reception Conditions Regulations 2018.
[18] Acting Minister for Justice Simon Harris, Response to Parliamentary Question No. 473,
[18] Acting Minister for Justice Simon Harris, Response to Parliamentary Question No 558, 28 February 2023, available at: http://bitly.ws/CL24.
[19] Irish Human Rights and Equality Commission, ‘Access to Bank Accounts Confirmed for Asylum Seekers’, 11 April 2021, available at: https://bit.ly/3so8Xo5.
[20] RTÉ, ‘Banks to allow asylum seekers use alternative documents to open accounts’, 13 May 2021, available at: https://bit.ly/3tfvwiF.
[21] ADJ-00017832 Correction Order issued pursuant to Section 29 of the Equal Status Act 2000 (as amended), available at: https://bit.ly/3dwAVXS.
[22] Irish Human Rights and Equality Commission, ‘Court Rules that RSA Regulations Block All Asylum Seekers from Getting Driving Licence’, 30 July 2020, available at: https://bit.ly/3nESyJx.
[23] Road Safety Authority v. A.B [2020] IECC 3, available at: https://bit.ly/3nGr9XJ.
[24] Irish Human Rights and Equality Commission, ‘Legislation Promised on Driving Licences Fundamental to Access to Employment for Asylum Seekers’, 21 October 2020, available at: https://bit.ly/39v3zrB.
[25] Minister of State at the Department of Transport Hildegarde Naughton, Response to Parliamentary Question No 103, 10 February 2021, available at: https://bit.ly/3u6PpXa.
[26] Landsberg & Anor v. National Driving Licence Service & Ors [2021] IEHC 748, available at: https://bit.ly/3evRaGY.