Liam Thornton, Associate Professor, UCD Law School*
*Reblogged with permission from Liam Thornton’s blog.
Last week, the Court of Justice of the European Union determined in the K.S decision that Ireland’s 2018 Reception Regulations are not in line with the 2013 EU Reception Conditions Directive. Specifically, individuals involved in a potential transfer under the Dublin system possess the right to work in Ireland under these circumstances:
When a decision on their primary protection claim (separate from the Dublin transfer) hasn’t been reached within nine months. Since the individual is undergoing the Dublin transfer process and a primary protection claim isn’t being addressed, this essentially grants the right to work within nine months. This right remains until the transfer to the EU member state handling the protection application takes place.
When the individual is not the cause of delays in the Dublin procedures or transfer.
When initiating legal action to dispute a Dublin transfer decision. This action doesn’t constitute a delay attributable to the individual and is merely exercising their legal rights as provided to protection seekers under the Dublin III Regulation.
Background
Irish law concerning the right to work for asylum seekers, as outlined in the 2018 Reception Regulations, aimed to establish two categories of individuals. The first category included individuals awaiting a decision on their protection claim and eligible to work after nine months if no decision was reached. The second category encompassed individuals potentially facing transfer to another EU Member State under the Dublin Regulation. This group was entitled to all reception rights except the right to work.
The Irish High Court believed that denying the right to work for asylum seekers facing potential Dublin transfers was permissible under the 2013 Directive. Mr. Justice Humphreys also stated that the applicants were responsible for delays in processing their Dublin transfers due to their legal action against being transferred to another EU Member State. However, the judge did request clarification from the Court of Justice of the European Union regarding his interpretation of the law. Pending this clarification, Judge Humphreys advised the International Protection Appeals Tribunal to adhere to his interpretation.
Tribunal Member Cindy Carroll, within the International Protection Appeals Tribunal, chose not to follow Mr. Justice Humphreys’ approach. She argued that EU law was sufficiently clear on this matter: individuals facing potential Dublin transfers were entitled to work if they met all other requirements. Further context on these cases and an analysis of the Court of Justice’s potential ruling can be found in Liam Thornton’s May 2020 article in European Public Law (open access version available).
The 2013 Reception Conditions Directive states that an asylum seeker can pursue employment if a first-instance decision on their protection claim hasn’t been made within nine months. Ireland opted into this Directive in 2018, essentially granting asylum seekers the right to work in Ireland for the first time. However, the Irish transposition Regulations, intended to implement the Reception Directive, didn’t provide individuals facing potential Dublin transfers the right to work.
Advocate General de la Tour, who presented his opinion on the case in September 2020, stated that asylum seekers facing potential Dublin transfers are entitled to work. He argued that Ireland couldn’t claim an asylum seeker was ‘frustrating’ their transfer by legally challenging the decision. This stance mirrors the approach taken by the International Protection Appeals Tribunal.
The Court of Justice Decision
The Court of Justice of the European Union has determined that there is only one category of asylum seeker under European Union law, and all individuals in this category are entitled to all reception rights and access to the labor market under the Reception Directive 2013. This is evident from established Court case law (see Cimade). This interpretation is reinforced by the recitals of the Reception Conditions Directive, which emphasize the significance of dignity and self-sufficiency for all individuals seeking international protection, regardless of their stage in the Dublin process or the determination of their protection claim. Although access to the labor market isn’t explicitly included in the 2013 Reception Directive’s definition of ‘material reception conditions,’ it is considered a broader ‘reception right’ referenced elsewhere in the Directive.
The Court of Justice dismissed the Irish High Court’s attempt to interpret the Reception Directive as allowing the denial of work authorization for those who didn’t file their protection claim in their first EU Member State of entry. This is because:
… [N]o provision of the Dublin III Regulation requires an applicant for international protection to lodge his or her application with the Member State of first entry.
Asylum seekers who appeal a first-instance decision to be removed from a country like Ireland are not accountable for delays within the courts. The High Court aimed to categorize all individuals contesting a Dublin transfer decision as ‘abusing rights,’ making them ineligible for work authorization. However, as the Court of Justice highlighted, the Dublin III Regulation explicitly grants applicants the right to challenge such decisions. The Court of Justice stated:
….the EU legislature did not intend that judicial protection enjoyment by applicants…should be sacrificed to the requirement of expedition.
The Court of Justice has clarified that when an asylum seeker subject to a Dublin transfer decision appeals the decision, they retain their entitlement to work.
Essentially, the Court of Justice has upheld the well-reasoned and informed approach that the International Protection Appeals Tribunal would have adopted if not for the Irish High Court’s decision in K. S. This ruling from the Court of Justice is not unexpected. Even a cursory examination of previous Court of Justice case law concerning reception conditions and the Dublin Regulation would likely lead a decision-maker or judge to the same conclusion. Another noteworthy aspect of this case (not limited to labor market access) is the Court of Justice’s decision that when interpreting Irish asylum and protection laws based on Ireland’s opt-in to EU asylum and protection directives, decision-makers and judges may, when appropriate, refer to Directives that Ireland has not opted into for legal clarification.
What happens now?
The 2018 Regulations require modifications to align with Ireland’s willingly assumed obligations under European Union law. The CJEU’s decision is so unambiguous that when processing work permits for asylum seekers involved in Dublin procedures, decision-makers in INIS and the Department of Justice must disregard the 2018 Regulations and directly apply EU law. (The authority for work permits remains with Justice, not with Children, Disability, Integration and Equality). Instead of waiting for the High Court or the International Protection Appeals Tribunal proceedings to conclude, this right is immediately effective. Therefore, asylum seekers whose rights are recognized under this ruling may want to request a new work permit, informing decision-makers of their obligations under EU law.
More broadly, this decision could have implications extending beyond Ireland, as it reiterates that all asylum seekers are entitled to all reception rights under the Reception Conditions Directive 2013.
**Note: I am not a legal practitioner and am unable to offer individual advice to people who may be impacted by this decision, please ensure you contact your legal representative.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: RTE.ie