N.v.H v Minister for Justice & Equality and ors

Factual and Procedural Background

An asylum seeker from The Country of Origin (“Appellant”) entered The State on 16 July 2008 and immediately applied for refugee status. His application was twice refused by the Refugee Appeals Tribunal, each refusal later being quashed on judicial review (July 2013 and February 2014 respectively). During this period he lived in the State’s “Direct Provision” system, receiving €19 per week and remaining subject to section 9(4) of the Refugee Act 1996, which imposes a blanket prohibition on employment for asylum applicants.

In May 2013 the Appellant was offered employment within the Direct Provision facility but was refused permission to work by the Minister for Justice and Equality (“Respondent”). He instituted judicial review proceedings challenging (i) the Respondent’s refusal and (ii) the constitutionality and legality of section 9(4) under the Constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights (“ECHR”).

The High Court dismissed the claim. The Court of Appeal (majority) affirmed, though one judge dissented on the constitutional issue. The Supreme Court granted leave to appeal on 27 April 2016. Before the appeal was heard, the Appellant was granted refugee status, prompting a mootness objection by the State. The Court nonetheless proceeded, citing the continued public importance of the constitutional challenge.

Legal Issues Presented

1. Whether section 9(4) of the Refugee Act 1996 (and the materially identical section 16(3)(b) of the International Protection Act 2015) is repugnant to the Constitution because it absolutely prohibits asylum seekers from seeking or entering employment, thereby violating the constitutional right to work/freedom to seek employment.
2. Whether a non-citizen asylum seeker may invoke unenumerated constitutional rights—particularly the right to work—under Article 40 of the Constitution.
3. Whether the Respondent possesses a statutory or inherent discretion, under section 4 of the Immigration Act 2004 or otherwise, to permit an asylum seeker to work notwithstanding section 9(4).
4. Whether the appeal had become moot once the Appellant obtained refugee status.

Arguments of the Parties

Appellant’s Arguments

• Section 9(4) constitutes an unconstitutional, disproportionate and indefinite bar on the Appellant’s freedom to seek employment.
• The prohibition is incompatible with the EU Charter and the ECHR.
• Section 9(4) is not absolute because section 9(11) of the 1996 Act and the discretionary power under section 4 of the Immigration Act 2004 allow the Minister to grant permission to work.
• The appeal is not moot: the Appellant spent years subject to an allegedly unconstitutional provision and is entitled to a ruling.

Respondent’s Arguments

• The case became moot when the Appellant was recognised as a refugee and could therefore seek employment.
• Section 9(4) is a legitimate policy instrument aimed at preventing a “pull factor” that could encourage unfounded asylum claims.
• The Respondent has no lawful discretion to override an express statutory prohibition; section 4 of the 2004 Act cannot be used to circumvent section 9(4).
• The distinction between citizens and asylum seekers in employment matters is constitutionally permissible and historically grounded in the State’s power to control immigration and access to its labour market.

Table of Precedents Cited

Court's Reasoning and Analysis

Mootness: Although the Appellant had obtained refugee status, the Court exercised discretion to hear the appeal because (i) a constitutional challenge to a statute is not necessarily mooted by a change in the plaintiff’s personal circumstances, (ii) leave to appeal had already been granted, establishing a point of public importance, and (iii) similar cases would inevitably recur.

Statutory Construction & Ministerial Discretion: The Court rejected the argument that section 9(4) is merely qualified. Section 9(11) was interpreted as applying only to applicants who already possess an independent lawful basis to remain in the State. The discretionary permission to land or remain under section 4 of the Immigration Act 2004 could not lawfully be used to circumvent an explicit statutory prohibition; doing so would impermissibly amend the legislation by executive act.

EU Charter & ECHR: For the reasons set out in the lower courts, neither the Charter nor the ECHR required a different result.

Non-Citizens and Constitutional Rights: Drawing on Article 40.1, the Court held that non-citizens may invoke constitutional rights that are intrinsic to human personality. The freedom to seek employment is such a right because work is closely connected to human dignity and personal development.

Permissible Distinctions: The State may differentiate between citizens and asylum seekers regarding employment to protect the labour market and control immigration. Considerations such as “pull factors” and ease of removal of unsuccessful applicants provide legitimate grounds for restriction.

Proportionality Analysis: Section 9(4) imposes an absolute and potentially indefinite ban. In the absence of any statutory time-limit on asylum determinations, a blanket prohibition—even extending beyond eight years in the Appellant’s case—cannot be justified. The provision therefore disproportionately infringes the constitutional freedom to seek employment.

Remedy: Because the unconstitutionality results from the interaction of several statutes, and potential legislative solutions exist, the Court adjourned the making of a final order for six months and invited further submissions on the form of relief.

Holding and Implications

HOLDING: The Court declared that an indefinite, absolute prohibition on employment for asylum seekers, as contained in section 9(4) of the Refugee Act 1996 and reiterated in section 16(3)(b) of the International Protection Act 2015, is incompatible with the constitutional freedom to seek employment.

Implications: The judgment obliges the Legislature and Executive to reconsider the statutory regime governing employment for asylum seekers, likely requiring either (a) the introduction of a temporal limit after which employment is permitted, or (b) some proportional alternative. While the final order is stayed for six months, the decision sets a constitutional benchmark that future restrictions on asylum-seeker employment must be proportionate and time-limited.