Enforcing the Right to Work Enforcing the Right to Work for Asylum - - PowerPoint PPT Presentation

Enforcing the Right to Work Enforcing the Right to Work for Asylum Seekers in for Asylum Seekers in Ireland Ireland & Europe & Europe

Dr Liam Thornton, UCD School of Law & UCD Human Rights Dr Liam Thornton, UCD School of Law & UCD Human Rights Centre Centre

Contribution Overview Contribution Overview

• 1. Aspects of the Supreme Court decision- potential impact and

limitations

• 2. Exploring the right to work for asylum seekers in select EU
• 2. Exploring the right to work for asylum seekers in select EU

jurisdictions – the mirage of freedom to work?

• 3. Reflecting on the need to ensure a rights based ‘freedom to work’

for asylum seekers in Ireland

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• 1. Aspects of the
• 1. Aspects of the

Supreme Court Decision Supreme Court Decision

“Much work is drudgery, often the subject of complaint rather than celebration, and most the subject of complaint rather than celebration, and most

• ften an economic necessity as

a means to live a chosen life rather than an end in itself.”

Judge Donal O’Donnell, N.H.V v Minister for Justice [2017] IESC 35, para. 15.

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“A Grumpy Decision” “A Grumpy Decision”

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Comments of Prof. Aoife Nolan, at Society of Legal Scholars Conference 2017, University College Dublin.

A decision grudgingly given ? (Nolan) A decision with significant restrictions that must be unpacked and explored.

Acknowledging Restrictions in the SC Decision Acknowledging Restrictions in the SC Decision

• Resolution through faster status determination processes

Previous High Court decision on damages for maladministration in the determination process (D.N (a child), Feb 2017)

• Granting a freedom to work, subject to Oireachtas decision!

subject to Oireachtas decision!

No restrictions? May be limited to certain employment sectors (N.H.V, paras 18-19); May only become effective after a certain (unspecified) period of time (N.H.V, paras 18-19);

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Back to the Political Sphere Back to the Political Sphere

“the Taskforce Taskforce is examining the implications that implications that granting access to the labour market will have on those granting access to the labour market will have on those applicants…. applicants…. In many EU Member States, the right to right to work is not an unfettered right work is not an unfettered right for applicants, often work is not an unfettered right work is not an unfettered right for applicants, often arising after a particular period of time, usually 9 months to a year. In many instances access may be access may be limited to particular job categories or may lead to the limited to particular job categories or may lead to the withdrawal of other financial supports withdrawal of other financial supports…and to reflect the existing requirements placed on other Third Third Country Nationals who come to Ireland as lawful Country Nationals who come to Ireland as lawful economic migrants economic migrants.”

Written answers, Monday, 11 September 2017, Charlie Flanagan T.D., Minister for Justice and Equality.

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• 2. The Right to Work for
• 2. The Right to Work for

Asylum Seekers & EU Asylum Seekers & EU Law Law Law Law

Recognising the Limited Nature of the Right to Work in EU Law

(a) EU Legal Measures (a) EU Legal Measures (Recast Reception Directive) (Recast Reception Directive)

• Freedom to work “no later than” 9 months,

where a first instance decision not issued (Art. 15(1) RRD) and applicant not at fault for delay.

• Access to labour market must be “effective”

(Art. 15(2) RRD)…..

• Access to labour market must be “effective”

(Art. 15(2) RRD)…..

• If granted before appeal, it should continue

where first instance decision has “suspensive effect” (Art. 15(3) RRD) BUT……. BUT…….

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Restrictions on Freedom to Restrictions on Freedom to Work in EU Law Work in EU Law

• EU Member States, “for reasons of labour market policies” may give

priority to: 1. 1. EU citizens and EEA Nationals, AND, EU citizens and EEA Nationals, AND, 2. 2. Legally resident third country nationals. Legally resident third country nationals.

• In essence, this permits national legal measures that employers have

to first seek to hire EU/EEA citizens and legally resident non first seek to hire EU/EEA citizens and legally resident non-

• EU

EU citizens, before they can hire asylum seekers citizens, before they can hire asylum seekers

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• European Parliament has highlighted:

“that slow and excessively bureaucratic procedures may hinder refugees and procedures may hinder refugees and asylum seekers’ access to education and training, employment guidance and the labour market…”

European Parliament, Resolution of 5 July 2016 on refugees: social inclusion and integration into the labour market, 2015/2321(INI)

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The Proposed new Reception Directive & Right The Proposed new Reception Directive & Right to Work (2016/2017) to Work (2016/2017)

European Commission Proposal Parliament Proposals

• AS may enter employment “in no

more than 6 months”, if no 1st instance decision

• “No later than two months from date of application”
• Accelerated procedures limits access to employment.

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• Accelerated procedures limits

access to employment.

• Preference for EU citizens and

lawful 3rd country nationals to be maintained

• Training and support provided to asylum seekers to assist

them to look for work.

• On ground of labour market policy, to pay particular attention

to youth unemployment of EU citizens, and provide preferential access to EU citizens/lawfully resident third country nationals to work opportunities.

• Parliament also proposed measures to permit asylum

applicants who were granted permission to work and whose protection claims are unsuccessful, to apply for residence permit (not absolute grant of such a permit).

3.

• 3. Overview of EU

Overview of EU Member States Member States Practice Practice

Time before accessing employment (Select Time before accessing employment (Select Countries) Countries)

• 0 months: Greece & Sweden
• 2 months: Italy
• 3-6 months: Switzerland, Austria, Belgium, Germany, Netherlands,

Poland, Bulgaria, Spain

• 9 months: Cyprus, France, Hungary, Croatia, Malta,

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Labour Market Tests & Other Limitations Labour Market Tests & Other Limitations

• Required to have a concrete job offer before accessing employment (Germany)
• Employment only in certain sectors (Sweden, Switzerland, Austria, Cyprus).
• May not enter self-employment (Germany) or restricted self-employment (Belgium)
• May not enter self-employment (Germany) or restricted self-employment (Belgium)
• Significant language barriers and/or financial crisis impacts rendering right to employment

illusory (Spain, Greece, Italy, Poland, Hungary etc.).

• Bureaucratic hurdles (many EU member states).
• Recognition of prior qualifications may take time, be exceptionally difficult to access processes

for gaining foreign qualification recognition.

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• 3. Reflections on
• 3. Reflections on

Implementing the freedom Implementing the freedom to work in Ireland to work in Ireland

With a detour to the United Kingdom

Justice Concerns on the Common Travel Area Justice Concerns on the Common Travel Area & Right to Work for Asylum Seekers & Right to Work for Asylum Seekers

“Having regard to the existence of the common travel area existence of the common travel area, there is the serious concern that should protection applicants be allowed access to full social welfare housing, and labour rights labour rights, Ireland could very quickly find itself dealing with an asylum crisis of significant dealing with an asylum crisis of significant proportions

• proportions. The State would therefore be faced with immediate and

proportions

• proportions. The State would therefore be faced with immediate and

considerable drain on its resources.”

Affidavit of Department of Justice official, November 2014, as cited in D.N (a child), para. 22.

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The Position in the United Kingdom The Position in the United Kingdom

• Exceptionally limited right to work for asylum seekers after 12 months, where no first

instance decision provided (in line with UK’s obligations under 2003 EU Reception Directive)

• Asylum seekers can ONLY

ONLY seek jobs on the Occupation Shortage List for the UK (and additional industries in Scotland); additional industries in Scotland);

• Highly skilled and specialised (ballet, nuclear scientist etc.)
• Self employment not permitted.
• Attempts to lift some restrictions by proposed amendments to the Immigration Bill 2015-

16 (UK), failed due to lack of support by Parliament.

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1 2 3 6 5 4

Detention Provisions Delayed Delayed Legislation Legislation Direct Provision Direct Provision Prohibition on Prohibition on Right to Work Right to Work Denial of leave to Denial of leave to land land

Refusal to examine Refusal to examine a regularization a regularization

6 5 4 7 8 9

Right to Work Right to Work land land

a regularization a regularization scheme scheme

Suspicious participation in CEAS Impact on judicial Impact on judicial decisions decisions Where to post Where to post-

• Brexit?

Brexit?

Legislating for a Right to Work for Legislating for a Right to Work for Asylum Seekers Asylum Seekers

• Is it feasible that a strong right to work will be recognised

by the Oireachtas?

• McMahon Report

McMahon Report (2015): No 1st instance decision within 9 months, right to work to be granted. [McMahon Report acknowledgd at time of preparation, vast majority of 1st instance decisions issued (well within) 9 months].

• State to opt into the EU Recast Reception Directive (2013)

unless “clear and objectively justifiable reasons” offered for not doing so.

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Median Processing Times (at end

• f 2016)
• Prioritized 1st instance decisions: 16 weeks (about 4

months) months)

• ‘Regular’ 1st instance decisions: 41 weeks (about 9.5

months)

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Key Issues

• Oireachtas will have to legislate, but will it go beyond ’copy and pasting’

the United Kingdom approach (see Ireland’s Skill shortage list)?

• Will it reflect EU trends on right to work for asylum seekers, which still have

significant limitations. significant limitations.

• Issues as regards direct provision system and freedom to work?
• Employment and social security rights?
• What would a rights based ‘freedom to work’ system look like?

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Thank You Thank You

References in next slides

Select References Select References

AIDA (2016), Wrong counts and closing doors: The reception of refugees and asylum seekers in Europe. AIDA (2016), Reception Rights for Asylum Seekers in Europe (Employment). European Commission, Proposal for a Directive laying down standards for the reception of applicants for international protection (recast), COM(2016) 465 final. European Parliament, Work and social welfare for asylum seekers and refugees, Dec. 2015. European Parliament, Committee on Civil Liberties, Justice and Home Affairs report on the proposal for a directive laying down standards for the reception of applicants for international protection (recast), 2016/0222(COD). European Migration Network, The Organisation of Reception Facilities for Asylum Seekers in different Member States: EMN Synthesis Report (February 2014) Irish Refugee Council, The Right to Work for International Protection Applicants. Policy Paper, July 2017. Mayblin, L. (2016) “Troubling the exclusive privileges of citizenship: mobile solidarities, asylum seekers, and the right to work” Citizenship Studies. Moran, L. et al. (2017) “Hoping for a better tomorrow: a qualitative study of stressors, informal social support and parental coping in a Direct Provision centre in the West of Ireland”. Moran, L. et al. (2017) “Hoping for a better tomorrow: a qualitative study of stressors, informal social support and parental coping in a Direct Provision centre in the West of Ireland”. Journal of Family Studies. Minderhoud P & Zwaan. K. (eds) (2016), The recast Reception Conditions Directive: Central Themes, Problem Issues and Implementation in Select Member States. Wolf Legal Publishers. OECD (2016), Making Integration Work: Refugees and Others in Need of Protection. ORAC (2016), Summary of Key Developments 2016. Slingenberg, L. (2014) The Reception of Asylum Seekers under International Law. Hart. Smyth, C. (2014) European Asylum Law and the Rights of the Child. Routledge. Thornton, L. (2013) “Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion”, Journal of Social Security Law, 20:2, 66-88. Thornton, L. (2014), “’The Rights of Others’: Asylum Seekers and Direct Provision in Ireland”, Irish Community Development Law Journal, 17:3, 22-42. Thornton, L. (2015), “A Preliminary Analysis of the Working Group Report and Recommendations on Direct Provision”, UCD Human Rights Network, Working Paper (30 June 2017) Thornton, L Asylum Seekers & the Right to Work, Human Rights in Ireland, Human Rights in Ireland, 30 May 2017. Waite, LJ (2017) “Asylum Seekers and the Labour Market: Spaces of Discomfort and Hostility”. Social Policy and Society. Weber, F. (2016) “Labour Market Access for Asylum Seekers and Refugees Under the Common European Asylum System”. European Journal of Migration and Law.

• M. Valenta/K. Thorshaug (2013) “Restrictions on Right to Work for Asylum Seekers: The Case of the Scandinavian Countries, Great Britain and the Netherlands”. International Journal
• n Minority and Group Rights

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