Access to the labour market

Republic of Ireland

Country Report: Access to the labour market Last updated: 23/04/21

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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 objection to transposition of the Directive was removed.

The Reception Conditions Regulations permits a person who has been waiting more than nine months for a first instance decision to apply for labour market access.[1] 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, at the time of writing the CJEU has yet to reach a ruling on the matter.[2]

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.[3]

Permission to access the labour market was previously for a six-month, renewable period[4], however in January 2021, this was extended to 12 months.[5] As a result of the Covid-19 pandemic, applicants whose work permits were due to expire between 21 January 2021 and 20 April 2021 will have their permission extended automatically. This applies whereby an applicant has not yet received a final decision on their international protection claim. This also applies whereby an applicant holds a current, valid permission or a permission that has already been extended under the previous notices issued.[6]

In practice 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.[7]

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.[8] 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.[9] These changes came into effect from 26 January 2021. [10]

Additionally, 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.[11] 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.[12] Approximately 223 judicial review cases, involving 281 persons, were stayed pending the decision. [13]

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.[14] 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.[15]

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.[16] 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.[17] 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.[18]

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.[19] This would also affect their asylum application.

In practice, protection applicants face significant barriers accessing bank accounts due to difficulties in producing satisfactory identity documents for the purposes of anti-money laundering requirements. This situation continued in 2020. However, 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. It is hoped that all banks in Ireland will now follow suit in light of this welcome development.[20]

People in the asylum process also face difficulties in accessing a driver licence. 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. However, a definitive date for the implementation of legislation was not provided .[25]

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. Employers typically will only pay salary into bank accounts for tax compliance reasons. The same difficulty makes it impossible for protection applicants to obtain a driving licence which inhibits the access to employment, particularly where people live in remote rural areas.

As of July 2020, a total of 6,986 applications for access to the labour market were received by the Department of Justice. 5,109 permissions had been granted, of which 3,889 (76%) were granted to residents in Direct Provision. Employers reported employing 2,539 applicants for international protection, of whom 1,786 were residents in Direct Provision.[26]

 

 

[1]   Regulation 11(3) Reception Conditions Regulations 2018.

[2]  CJEU, Reference for a preliminary ruling from High Court (Ireland) made on 23 April 2019 — KS, MHK v The International Protection Appeals Tribunal, the Minister for Justice and Equality, Ireland and the Attorney General(Case C-322/19), available at: https://bit.ly/2Th7P6Z.

[3] Regulation 11(9)(a) and Schedule 6 Reception Conditions Regulations 2018.

[4]  Regulation 11(5) Reception Conditions Regulations 2018.

[5]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.

[6]  UNHCR, Information on Covid-19 for Refugees and Asylum-Seekers in Ireland –Updated January 15 2021, available at: https://bit.ly/35hNTa8.       

[7]  Movement of Asylum Seekers in Ireland (MASI), Submission to Justice & Equality Joint Committee, 27 May 2019, available at: https://bit.ly/2VHPUI2.

[8]  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.

[9] Irish Legal News, ‘Restrictions on asylum seekers access to work to be eased’, 22 October 2020, available at: https://bit.ly/39u6t00.

[10] 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.

[11] 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.

[12] Ibid.

[13]  Minister for Justice and Equality Charles Flanagan, Response to Parliamentary Question No 382, 3 June 2020, available at: https://bit.ly/36eiiqr.

[14]   Regulation 11(9)(a) and (10) Reception Conditions Regulations 2018.

[15]  Regulation 11(9)(b) and (c) Reception Conditions Regulations 2018.

[16]  Regulation 14 Reception Conditions Regulations 2018.

[17] 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.

[18]  Regulation 15(2) Reception Conditions Regulations 2018.

[19]  Regulation 15(1) Reception Conditions Regulations 2018.

[20]  Irish Human Rights and Equality Commission, ‘Access to Bank Accounts Confirmed for Asylum Seekers’, 11 April 2021, available at: https://bit.ly/3so8Xo5.

[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] Advisory Group on Direct Provision, 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/3qgSmC3, 76.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – Transposition of the CEAS in national legislation