Author
In July 2018, Ireland transposed the EU 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.[1]
According to the latest available statistics, from 2018 to present, the Labour Market Access Unit has received 24,392 first-time applications for labour market access permission. Of these applications, 20,288 first-time applications were granted, while 3,361 applications were refused. Moreover, as of January 2024, there were 3,000 applications pending before the Labour Market Access Unit.[2]
Waiting times and delays
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.[3] In order to be eligible for labour market access, an applicant must also co-operate with the international protection process, with the condition that delays in receiving a first-instance decision must not be attributable to them.[4] This condition was recently examined in the case of L.K. v. International Protection Appeals Tribunal & Ors. In this case, the High Court upheld the applicant’s appeal, concluding that the International Protection Appeals Tribunal was wrong to deny the applicant access to the labour market on the basis that there was no evidence that he was responsible for delays in the processing of his international protection application. In September 2019, the applicant applied for international protection in Ireland, however, was unable to complete the process required to lodge his application due to the unavailability of a Georgian interpreter. He was advised that his application would be postponed until such time a Georgian interpreter could be arranged, however, he claimed that he did not hear from the International Protection Office regarding a further appointment date. An appointment was eventually arranged, and the application lodged in December 2020. The applicant was issued with a Georgian questionnaire to complete. He later sought several extensions on the return date for the questionnaire, including for reasons attributable to Covid-19 and also the need to engage a Georgian translator. These requests were granted by the IPO.
In July 2020, the applicant applied for labour market access permission, and this was refused by the Labour Market Access Unit on the grounds that the applicant was responsible for the delays in completing his application for international protection. This decision was appealed to the International Protection Appeals Tribunal, who upheld the decision of the Labour Market Access Unit. The applicant then filed judicial proceedings before the High Court. Upholding the applicant’s appeal, the High Court concluded that the LMAU’s refusal was unjustified and that there was no evidence that the aforementioned delays were attributable to the applicant. Moreover, it was held that the IPAT’s upholding of this judgment was unreasonable in light of the Covid-19 pandemic and associated public health measures.[5]
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.[6]
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.[7] 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.[8]
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. Previously, in order to apply for labour market access, an individual was required to complete and submit an application form by email to the Labour Market Access Unit, along with a copy of their Temporary Residence Certificate and details of any identity documentation provided to the IPO to establish their identity or a description of the efforts made to attain same.[9] However, applications are now made online via the Immigration Service Delivery portal.[10]
As a consequence of the significant increase in the number of international protection applicants arriving in the state throughout 2023, there were very high volumes of applications received by the Labour Market Access Unit in respect of permission to work. This resulted in significant processing delays of approximately 145 days for first time permission applications.[11] Thus, while applicants are generally eligible for labour market access permission 6 months after their initial application for protection, many applicants are waiting up to 9.5 months in order to access the labour market.[12] In the view of the Irish Refugee Council this may constitute a breach of the Reception Conditions Directive which requires that an applicant be permitted access to the labour market within nine months of their initial application for protection. The Irish Refugee Council has written to the Minister for Justice in relation to this issue, however, no response had been received at the time of updating.[13]
Labour Market Access delays continued throughout 2024. While delays have reduced somewhat, processing times remain at 90 days for first time permission applications.[14] From January 2025, all labour market access permits were issued by email as opposed to by post, with a view to reducing overall processing times.[15]
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.[16]
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.[17] 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 Reception Conditions Regulations 2018 coming into force, provided they meet the criteria established in the Regulations.[18] These changes came into effect from 26 January 2021 and continue to apply as of April 2025.[19]
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.[20] 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.[21] Approximately 223 judicial review cases, involving 281 persons, were stayed pending the decision.[22]
Conditions and duties of applicants and employers
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.[23] 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.[24]
In addition, employers must inform the Minister within 21 days of employing an asylum applicant in possession of labour market permission and must inform the Minister within 21 days of that employment ceasing.[25] 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.[26] 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.[27]
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.[28] This would also affect their asylum application.
Access in practice
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 applicants to open a bank account. The Commission used its statutory powers through a formal process known as an Equality Review.[29] 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 would be able to provide alternative documentation to prove their identity when seeking to open a bank account.[30] As of January 2025, the vast majority of applicants were able to access bank accounts without difficulty.[31]
People in the asylum process also face difficulties in obtaining a driving 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”.[32] In this case, the individual’s application for a learner driver licence was refused after he provided his asylum applicant’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.[33]
Subsequently in July 2020, the Dublin Circuit Court overturned a separate Workplace Relations Commission declaration that the refusal to issue driving licences to asylum applicants 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.[34]
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 applicants to driving licences.[35] 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 applicants.[36] 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 applicants 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”.[37]
Following the implementation of the Road Traffic and Roads Act 2023, international protection applicants can now apply for a driving license on the same basis as Irish citizens, provided all other requirements are met, and can use their temporary residence certificate as proof of normal residence in Ireland.[38] In the experience of the Irish Refugee Council, as of January 2025, there were no reports of service users experiencing difficulties accessing driving licenses.[39]
Other barriers faced by international protection applicants in sourcing suitable employment include scarcity of employment, lack of access to childcare and discrimination.[40] In the experience of the Irish Refugee Council, such barriers are often exacerbated by the fact that many applicants are accommodated in rural locations with lack of access to public transport links.[41] Language barriers and cultural differences also play a significant role.[42]
Additionally, a study from the ESRI published in March 2023 regarding labour market integration of international protection applicants in Ireland concluded that the majority of international protection applicants are in low-skilled jobs which do not match the qualifications they hold.[43] The study found that the largest sector that international protection applicants are employed in is business, sales, and tourism sector with 2,186 persons employed in this industry. Agriculture, animals, and food was the second most common sector with 1,321 people employed.[44]
The study also found that applicants are included within mainstream labour market integration policies and can access employment services, such as those provided by Intreo. However, applicants cannot access some employment supports, due to not meeting eligibility requirements, and moreover, cannot access a tailored labour market which would be relevant to their particular qualifications.[45] The ESRI stated that no specific nationwide governance measures to support labour market integration in Ireland were identified in the ESRI’s research and Ireland has no specific strategy or policy to support the labour market integration of third-country nationals.[46]
[1] N.V.H. v Minister for Justice and Equality [2017] IESC 35, available: here.
[2] Minister for Justice and Equality, Response to Parliamentary Question No. 1076, 17 January 2024, available: here.
[3] Regulation 11(3) Reception Conditions Regulations 2018.
[4] Immigration Service Delivery, ‘Labour Market Access Permission’, available: here.
[5] L.K. v. International Protection Appeals Tribunal & Ors [2022] IEHC 441, available: here.
[6] Regulation 11(9)(a) and Schedule 6 Reception Conditions Regulations 2018.
[7] Department of Justice, Minister McEntee announces further temporary extension of immigration permissions, 21st December 2021, available: here.
[8] Immigration Service Delivery, Impact of Covid-19 on Immigration and international Protection: Frequently Asked Questions, last updated 21st December 2021, available: here.
[9] Immigration Service Delivery, ‘Labour Market Access Permission’, available: here.
[10] Information provided by Irish Refugee Council Information and Advocacy Service, January 2025.
[11] ibid.
[12] Information provided by Irish Refugee Council Information and Advocacy Service, January 2024.
[13] Information provided by Irish Refugee Council Policy Officer, January 2024.
[14] Immigration Service Delivery, ‘Labour Market Permission’, 28 January 2025, available: here.
[15] ibid.
[16] Movement of Asylum Seekers in Ireland (MASI), Submission to Justice & Equality Joint Committee, 27 May 2019, available: here.
[17] 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: here.
[18] Irish Legal News, ‘Restrictions on asylum seekers access to work to be eased’, 22 October 2020, available: here.
[19] Department of Justice, ‘Minister McEntee announces reduced 6 month waiting period for international protection applicants to access work’ 28 January 2021, available: here.
[20] 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: here.
[21] ibid.
[22] Minister for Justice and Equality Charles Flanagan, Response to Parliamentary Question No 382, 3 June 2020, available: here.
[23] Regulation 11(9)(a) and (10) Reception Conditions Regulations 2018.
[24] Regulation 11(9)(b) and (c) Reception Conditions Regulations 2018.
[25] Regulation 14 Reception Conditions Regulations 2018.
[26] Dublin Inquirer, ‘People Seeking Asylum Say They’re Funnelled Into Low-Paid Temp Work, Unable to Use Their Skills’, 3 July 2019, available: here.
[27] Regulation 15(2) Reception Conditions Regulations 2018.
[28] Regulation 15(1) Reception Conditions Regulations 2018.
[29] Irish Human Rights and Equality Commission, ‘Access to Bank Accounts Confirmed for Asylum Seekers’, 11 April 2021, available: here.
[30] RTÉ, ‘Banks to allow asylum seekers use alternative documents to open accounts’, 13 May 2021, available: here.
[31] Information provided by Irish Refugee Council Information and Advocacy Service, January 2025.
[32] ADJ-00017832 Correction Order issued pursuant to Section 29 of the Equal Status Act 2000 (as amended), available: here.
[33] Irish Human Rights and Equality Commission, ‘Court Rules that RSA Regulations Block All Asylum Seekers from Getting Driving Licence’, 30 July 2020, available: here.
[34] Road Safety Authority v. A.B [2020] IECC 3, available: here.
[35] Irish Human Rights and Equality Commission, ‘Legislation Promised on Driving Licences Fundamental to Access to Employment for Asylum Seekers’, 21 October 2020, available: here.
[36] Minister of State at the Department of Transport Hildegarde Naughton, Response to Parliamentary Question No 103, 10 February 2021, available: here.
[37] Landsberg & Anor v. National Driving Licence Service & Ors [2021] IEHC 748, available: here.
[38] Department of Transport, ‘Asylum seekers can now apply for driving licenses’, 17 December 2021, available: here.
[39] Information provided by Irish Refugee Council, January 2025.
[40] Information provided by Irish Refugee Council Employment Team, February 2024.
[41] ibid.
[42] ESRI, ‘Labour Market Integration of International Protection Applicants in Ireland’, 24 March 2023, available: here.
[43] ibid.
[44] ibid.
[45] ibid.
[46] ibid.