Mar 24, 2011
Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR
Human Rights in Ireland is delighted to welcome this guest post from Gráinne Mellon. Gráinne is a pupil barrister at 36 Bedford Row Chambers in London. She is a graduate of Trinity College Dublin and the London School of Economics where she specialised in immigration and human rights law.
Ireland is only one of two member states of the European Union (the other being Denmark) that has failed to ratify the 2003 EU Directive on the Minimum Standards for the Reception of Asylum Seekers. The Reception Directive, as it is known, lays down the minimum conditions for asylum seekers and provides that they must be allowed to work after a year of waiting for a decision, or before. Asylum seekers in Ireland therefore are not permitted to work in any capacity pending the resolution of their claim; regardless of how long this takes. The UK, on the other-hand, ratified the Directive but excluded subsequent asylum seekers from accruing any right to work in doing so. In a landmark case last year of ZO (Somalia) v. Secretary of State for the Home Department [2010] 1 WLR 1948 the UK Supreme Court ruled this exclusion was unlawful. Although the ruling was based solely on the Reception Directive, litigation for damages both for State Liability under EU law and breach of Article 8 is ongoing.
It is clear therefore that despite not being subject to the requirements of the Directive, the Irish government remains bound by Article 8 of the ECHR in respect of immigration policy. Two recent decisions of the High Court in London have dealt with the right to seek employment as an aspect of private life in the specific context of asylum seekers. These cases show that although the state of law is in some flux, there is real and meaningful debate about the impact of Article 8 in this area.
In Tekle v Secretary of State for the Home Department [2009] 2 All ER 193 Blake J. found that the Article 8 rights of an asylum seeker forced to wait four years for his fresh claim to be decided and denied permission to work during this period were breached. Article 8 (1) was engaged in light of the principle that prohibitions on employment can interfere with private life, in particular the ability to develop relations with the outside world (Niemietz v Germany (1993) 16 EHRR 97 and Sidabras v Lithuania (2006) 42 EHRR 6). Blake J. made no distinction on the basis that the applicants were asylum seekers, and concluded, “The ability to take employment is an aspect of private life.” It is clear the judge was also influenced by the prolonged duration of this positive prohibition. Blake J. also dismissed the Government’s arguments concerning deterring unmeritorious asylum claims and found the policy was not justified in the context of article 8(2).
On this basis, the real scope for argument in the context of Irish asylum seekers is likely to be under article 8 (2). While the Tekle arguments may seem context-specific, it is notable that the 2008 Government response to Council of Europe Commissioner of Human Rights Report that the wider immigration system would be undermined by “giving immigrants who secure entry to the State, on the basis of unfounded asylum claims, the same access to employment as immigrants who follow the lawful route to employment” is, in some respects similar to the arguments made on behalf of the UK Government and ultimately rejected by Blake J.
The issue of Article 8 in the context of permission to work for asylum seekers has been considered again by the High Court in London as recently as 4th March 2011. In R (on the application of Negassi) v Secretary of State for the Home Department [2011] EWHC 386 (Admin) Collins J. considered the case for damages for breach of Article 8 arising out of the Supreme Court decision that the prohibition on subsequent asylum seekers working was unlawful in the context of the Reception Directive. Collins J. perhaps conscious of the massive cost-implications of this test case, rejected the claim and in so doing adopted an unusual approach to Article 8, one, which it is hoped, will be over-turned on appeal.
Collins J. appears to accept the principle at stake stating that “an unlawful exclusion from work could arguably give rise to a claim… I have no doubt that the inability to work and earn some money from employment, coupled with the opportunity for social intercourse relating from it, is regarded as very important.”
However he distinguishes the Claimant’s case on one basis: that he was a non-national with no pre-existing right to access the employment market.
This seems a novel approach to the construction of Article 8 and arguably the wrong starting point for any analysis. The rights in the Human Rights Act 1998 are free-standing; there is no pre-cursor to their application. Furthermore, Article 1 of the ECHR clearly states that the provisions of the Act apply regardless of status. Here, the sole distinguishing factor is that the Claimant is an asylum seeker. It is arguably more legally and logically coherent to consider matters of status, asylum policy and border control in the context of article 8(2), rather than as defining the existence of the right itself.
Additionally, the Claimant was simply not asking the judge to decide that he had a right to work- simply whether the State interfered with his private life (particularly his ability to develop relations with others) and whether that was justified.
The conflated approach of Collins J. both in terms of considering matters of asylum policy in article 8(1) instead of article 8(2) and also in finding the Article 8 claim failed on damages because the state liability claim failed on causation (despite the different causes of action and legal tests in each) perhaps arise because of the unusual legal history of this case and the interaction of Article 8 with the Reception Directive and the ZO case. However, despite these complications, it is hoped a traditional approach to Article 8 will be taken on appeal and the issue of damages then assessed against a legally sound backdrop.
Both Tekle and Negassi highlight the simple point that Irish obligations towards asylum seekers cannot be avoided simply by failing to opt-into an EU Directive. With or without the Reception Directive, the blanket ban on asylum seekers working pending the resolution of their claim is likely to engage Article 8. The Government have been repeatedly put on notice as to the difficulties of the current position (both the ECRI and the Council of Europe Commissioner for Human Rights have called for the introduction of temporary work permits.)
This nascent and ongoing UK litigation should act as a further incentive for the Irish government to consider granting employment opportunities to asylum seekers, albeit in a limited fashion. Ratification of the Reception Directive would be the most natural way to do this. It would also ensure that Ireland remains in step with the rest of Europe in terms of harmonized reception standards and not just harmonized asylum procedures. The lesson from the UK experience is that any such ratification must be both thorough and meaningful.
Well done. Hopefully with the Universal Periodic Review about to take place the Irish government will consider (be forced to consider) ratifying the Reception Directive.
Thanks for this article. If you are interested by information on the right to work of persons in need of international protection register to the RSS feeds of my new blog “Work for asylum” dedicated to the subject:
http://asylumwork.blogspot.com/
Some papers on the topic will soon be published.