Topical Issues Debate

The need for the Tánaiste and Minister for Justice and Equality to outline what action will be taken on foot of the Supreme Court judgement yesterday in the case of an asylum seeker looking for work (N.V.H. v Minister for Justice & Equality) raised by Deputies Fiona O'Loughlin, Bríd Smith and Mick Barry

Response by David Stanton TD, Minister of State on behalf of the Tánaiste, Frances Fitzgerald TD

31 May 2017

"I thank the Deputies for tabling this Topical Issue and it is a useful opportunity for me to outline some initial views to the House. Clearly this is an important judgement and its full implications are already being examined carefully. The Court itself recognises the complexities around this issue in that it acknowledges the Executive function in not only controlling who should enter the State but also to regulate the activities of non-citizens while in the State and has had to consider the distinctions of rights between citizens and non-citizens in the context of Article 41 (1) of the constitution.

The right of asylum seekers to work is an issue which I have raised previously and in fact both the Tánaiste and I had in recent weeks asked our officials to begin work to identify the options for and barriers to asylum seekers accessing the labour market in particular defined circumstances. Yesterday’s judgement gives this work increased emphasis and priority.

The judgement has concluded that an absolute ban on the right to work (as distinct from a time limit being set in legislation or some other means), is contrary to rights under Article 40.1 of the Constitution. The court recognises that this is a matter for the Executive and Legislature to consider and accordingly has adjourned consideration of the Order the Court should make for a period of six months. Full consideration of the judgement will be given over the coming period and it is expected that the State will make submissions to the Court in relation to the format of the order the Court is to make at the appropriate time.

The judgment raises obvious policy, legal and operational issues and my Department, working with the Office of the Attorney General, and in consultation with other Departments, will be examining the impacts of the judgement in the coming period. Proposals will be brought to Government as soon as that process concludes. Contributions from members of this House to this process will also be carefully considered.

This judgement should not be looked at in isolation without recognising the considerable changes that have already been made to the system of international protection and improvements that have been made and are continuing to be made to the Direct Provision system. The new asylum legislation, commenced on 31st December last, is specifically designed to address the delays in decision making with consequent increased time spent in direct provision. Indeed positive determinations have been made in 115 cases in the first three months of this year; the result of which is that the individuals in question are fully entitled to access the labour market.

Regarding the overall length of stay in Direct Provision, since the Justice McMahon Group examined this, there has been a radical improvement in the length of time persons are in the Direct Provision system. Figures now show that 72% have been there for three years or less since the date of their application. This compares to 36% who were there for 3 years or less when the data was compiled for the Working Group in 2015. In other words, there has been a complete reversal in the profile of the length of stay since the Working Group examined the matter. These improvements are as a result of concerted efforts to deal with cases who are 5 or more years in the system.

Overall, 92% of the McMahon Report’s 173 recommendations are now implemented, partially implemented or are in progress. This is a significant increase on the 80% reported in the first audit of progress published last June. That is 121 of the recommendations are now implemented, with a further 38 recommendations partially implemented or in progress.

The McMahon report also focused on improvements on living conditions in Direct Provision Centres. A programme of independent living is being rolled out across the centres to enable residents to have access to self-catering options. Self-catering is now in operation in Mosney with further kitchens installed and becoming available for use by residents in centres in Clonakilty, Kinsale Road, Knocklisheen and St Patrick’s in Monaghan. In addition a food hall was opened at Mosney in January this year which allows residents to acquire their own food through a points system.

The question of the right to work is closely intertwined with the processing times for first instance decisions. In many EU Member States, the right to work is not an unfettered right, often arising after a particular period of time – usually 9 months to a year – and in many instances limited to particular job categories, etc. For example in Sweden and Portugal the granting of a right to work coincides with the withdrawal of financial supports. One of the principle aims of the International Protection Act is to process cases as quickly as possible so that persons who are granted a permission to stay have an automatic right to work. Providing a legal or practical limitation on the time taken to process an application for asylum is one option mentioned in the Judgement that may be permissible. This will be a matter for further consideration.

In conclusion, the full implications of the judgement is being examined, including wider implications in relation to the operation of the Common Travel Area and indeed the upcoming Brexit negotiations. However, what can be said is that the Government, through its various measures to improve processing rates is already moving to the stage whereby first instance decisions on status will be made as quickly as possible with persons granted status having automatic right to work. Clearly the alignment of these important developments will form part of the detailed consideration and response to yesterday’s Supreme Court Judgement."

Frances Fitzgerald TD

Frances Fitzgerald TD is Tánaiste and Minister for Justice and Equality.



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Updated: 31 May 2017

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