The High Court has refused to find that a regulation preventing asylum seekers from working in the public sector is disproportionate or unlawful.
The request was made by an international protection applicant from the Middle East who alleged his right to work was breached by the blanket prohibition contained in the 2018 Irish law that transposes an EU directive.
Asylum seekers are entitled to seek access to the labour market in Ireland if still awaiting a decision on their international protection application after five months.
In his decision refusing to grant the requested declaration, Mr Justice Barry O’Donnell said EU law does not provide for unqualified access to the labour market. Restrictions can be imposed by member states so long as they do not impede “effective” access to work, he said.
The judge said the applicant came to Ireland in January 2023 and applied for international protection. He had worked as a pharmacist since 2005, with a particular specialisation in public health sector pharmacy, the judge said.
The Minister for Justice permitted the man to access the labour market here from the end of August 2023 until his asylum application was determined. He secured refugee status in October 2023, which entitled him to seek and enter employment in the same way as an Irish citizen.
However, the High Court continued to hear his case, which included a claim for damages arising out of an alleged breach of his rights for the 50-day period when he was an asylum seeker entitled to labour market access.
He claimed he was prevented from taking up pharmacy work in the public sector during this time due to the prohibition in the 2018 regulations. He was working in a private pharmacy in September 2023 and alleged he was being paid less than someone with his experience and qualifications should attract.
He claimed the Irish prohibition on public sector work amounts to a “disproportionate” limitation on his labour market access without legitimate justification and in breach of the EU directive. It breached his rights under the Irish Constitution and the Charter of Fundamental Rights of the EU, he argued.
The State parties– the ministers for employment and justice, the Attorney General and Ireland– contended that different EU member states adopt different measures for regulating access to their labour markets.
The State is entitled to take into account that “unimpeded access may lead to disproportionate numbers of third country nationals arriving in the State who may ultimately fail in their application for international protection”, they added.
Mr Justice O’Donnell was satisfied the State parties established there is a concern, borne out by historic experience, about creating such “pull factors”.
He said the man’s complaint was not about accessing the labour market per se, but that he could not access his “preferred” employment. This does not appear to form a basis for a successful challenge of the measures, the judge said.
The primary purpose of allowing “effective” labour market access is to promote the dignity of international protection applicants by enhancing their self-sufficiency, he said.
He was not persuaded that Ireland’s restriction on public sector employment infringes asylum seekers’ rights to effective labour market access or that the restriction is disproportionate.
He refused the application.
