3 Since his arrival in the State, the appellant has been living in Direct Provision in County Monaghan. In May 2013, he was offered employment in the Direct Provision facility. He is, or at least appears to be, precluded from taking up that offer of employment from the provisions of s.9(4). He had applied to the Minister for Justice for permission to take up the offer of employment. The Minister refused on the grounds that such employment was precluded by s.9(4). Accordingly, the appellant commenced these proceedings seeking to challenge that interpretation of s.9(4) and/or to seek a declaration of the incompatibility of s.9(4) with the Charter of the European Union, the European Convention on Human Rights, and the Constitution. His claim was dismissed by the High Court (McDermott J.) in a careful judgment. The Court of Appeal by a majority, (Ryan P., Finlay Geoghegan J.; Hogan J. dissenting) upheld that decision notwithstanding the considerable sympathy the Court expressed for the plight of the appellant. Hogan J. dismissed the claims in EU law and in relation to the European Convention on Human Rights, but dissented in this regard, that he would have found that the appellant, although a non-citizen, was entitled to rely on the unenumerated right to work protected by Article 40.3 of the Constitution. Hogan J. ruled that whilst the State had very considerable latitude in this regard, the blanket ban on employment contained in s.9(4) was disproportionate to any legitimate State interest, and accordingly invalid. Since the commencement of these proceedings, the 1996 Act, including s.9(4) has been repealed by s.6 of the International Protection Act 2015 subject to certain transitory provisions contained in Part 11 of that Act, which continued the application of the 1996 Act to certain cases in being. However s.16(3)(b) of the 2015 Act contains an almost identical prohibition on applicants from seeking or entering employment or being employed or otherwise engaged in any gainful work or occupation. Although therefore the precise regime applicable to the applicant may require to be clarified, it is clear that the entry into force of the 2015 Act does not of itself render these proceedings moot or require any further or different analysis. Possible mootness does arise however in a different context.

10 Nor do I think that any inherent executive power could avail the appellant here. The control of entry to the State by non-citizens, and the range of activities in which they can engage while here, was as a matter of history, a core function of the executive power. The question as to what extent that executive power can remain if legislation seeks to control the area is an interesting one rarely debated. But even if there remains a residual executive discretion after legislative regulation, it could not be operated to effect the repeal or amendment of a section of legislation which explicitly provided that an asylum seeker should not seek to or obtain employment while in the refugee system. It was after all decided as long ago as 1610 in the Case of Proclamations (1610) 12 Co. Rep. 74, that the royal prerogative did not extend to repealing or overriding any legislation, and the same must be capable of being said, a fortiori, of the executive power in a constitution which recognises a separation of powers. Finally, for the reasons addressed in the judgments of both McDermott and Hogan JJ., I agree that no issue can arise under the Charter or indeed the European Convention of Human Rights. Accordingly, it is necessary to consider the constitutional arguments made. These arguments raise some important and difficult questions of constitutional law: may a non-citizen, and in particular an asylum seeker without any other connection to the State, rely on any right guaranteed by the Constitution of Ireland, and if so the unenumerated constitutional right to work? If so what is the nature of the right to work guaranteed by the Constitution? If a non-citizen may invoke such a right, what is the nature and extent of the right which must be accorded to a non-citizen and in particular asylum seeker with no other connection to, or claim to remain in the State?

12 As Hogan J. observed, there is a relatively impressive line of authority recognising that the Constitution Article 40.3, at least, guarantees what has been described as a right to work. That was established in cases such as Landers v. The Attorney General (1975) 109 I.L.T.R. 1, Murtagh Properties v. Cleary [1972] I.R. 330, Murphy v. Stewart [1973] I.R. 97 and Cafolla v. O’Malley [1985] 1 I.R. 486. I share however Hogan J.’s view that if the right was not so well established, I would have wished to consider afresh whether such a right was one of the unenumerated rights protected by Article 40.3 and in any event if it could be accurately described as an enforceable right to work. Most of the relevant case law comes from an era when unenumerated rights were discovered if not declared, almost on the basis of propositions with which no one could disagree. However, a socio-economic right is of quite a different order to the personal rights which are explicitly guaranteed by the text. It certainly seems unlikely that the drafters of the Constitution would have set out a right to work in a bald form without considerable explanation and elaboration, and perhaps limitation. This is even clearer since after Meskell v. CIÉ [1973] I.R. 121 (a case itself decided in employment context), it appears that the Constitution provides for horizontal enforcement between individuals, albeit without much discussion of the theoretical justification for this development. If there was some general and unspecified right to work, it would arguably be engaged if not infringed, when an economy did not provide for full employment, when a person who was in employment was dismissed or, when someone was precluded from working because of a strike. I find it difficult to believe for example that the Constitution imposes on the Government an obligation (presumably enforceable by action in court) to pursue policies directed towards full employment, as was suggested in some of the international material submitted on behalf of the appellant. It is easier I think to conceive of any constitutional protected interest as a freedom, and in this case, freedom to seek work which however implies a negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification.

13 It is interesting that that is how the interest protected is referred to in for example the EU Charter of Fundamental Rights. Thus Article 15 of the Charter is included in the section on freedoms and is headed “Freedom to choose an occupation and right to engage in work”, Article 15 provides:

“1 Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

2 Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.”

Similarly we were referred to a commentary by the UN Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights which referred to the right as the “right to be able to work” or the “right not to be deprived of work unfairly”. That no doubt is why the right has so rarely moved beyond the sphere of the rhetorical: it is rare for a person to be precluded by law from seeking employment. However it does arguably arise here. Section 9(4) is a blanket prohibition on employment. Indeed asylum seekers are prohibited from even seeking employment. If this provision were applied to a citizen, it would be difficult if not impossible to justify. It becomes important therefore to consider if an asylum seeker may rely on that right, and if so with or without restriction. This involves on my analysis, a consideration of the nature of the right guaranteed to Irish citizens, in order to consider whether to deny any protection to the applicant would be to fail to treat him equally as a human person. This involves a consideration of whether the right is in essence social, and tied to the civil society in which citizens live, in the way that it might be said that voting is limited by belonging to the relevant society, or whether the right protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons mandated by Article 40.1.

This case had been dealt with in the Court of Appeal and the High Court previously. NHV v Minister for Justice and Equality & ors [2016] IECA 86, available at: http://courts.ie/Judgments.nsf/0/CD233A79F54C442180257F7800422338. The relevant paragraph of Hogan J’s dismissal of the claims in EU law from the 2016 Court of Appeal decision are included now below. Hogan J held that there was no implementation of Union law, and that, therefore, the Charter was not applicable:

“39. The key provision of the Charter is, of course, Article 51(1) which provides that it applies only to Member States when they are “implementing” Union law. Classically, of course, a Member State is “implementing” Article 51(1) when it exercises a discretionary power pursuant to a Directive or a Regulation. But beyond these obvious contexts, this is a phrase which is one which, perhaps, avoids precise definition.

40. The recent decision of the Court of Justice in Case C-617/10 Åkerberg Fransson EU:C: 2013:280 is illustrative of some of these difficulties. Here the question was whether the ne bis in idem provisions of Article 50 of the Charter applied to a tax penalty imposed for VAT purposes. The taxpayer in this case had previously paid administrative tax penalties and the question was whether Article 50 of the Charter precluded the application of further penalties in later proceedings.

41.          A Grand Chamber of the Court of Justice, drawing on the official Explanations for the Charter in accordance with Article 52(7), held in essence that the Charter bound Member States “when they act in the scope of Union law” and that is what the phrase “implementing” Union law in Article 51(1) really meant. The Court of Justice then held that Sweden was “implementing” Union law in the present case because “the tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT.”

42.          The Court then pointed to specific anti-evasion provisions of the consolidated VAT Directive 2006/112/EC which ensured that Member State are under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion. Given further that VAT revenue formed part of the Union’s own resources:

“...there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second....”

43.          The Court then concluded that tax penalties and criminal proceedings for tax evasion, constituted the implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU. It followed, therefore, that Sweden was “implementing” European Union law for the purposes of Article 51(1) of the Charter.

44.          In my view, in the context of the present case, it cannot be said that the State was “implementing” EU law. Ireland had already sometime previously elected to opt-out of the 2013 Reception Directive as it was fully entitled to do. By so electing, it must be accepted that the topics which were the subject matter of the Directive itself remained entirely within the sovereign realm of this State and, accordingly, fell outside the scope of EU law. As the right of asylum seekers to participate in the labour market pending the determination of their claim is one of these very topics which were addressed by the 2013 Reception Directive, legislation enacted by the Oireachtas regulating the rights of asylum seekers in relation to employment and the labour market equally falls outside the scope of EU law. One may thus say that by electing to opt-out of the Directive (and, in that sense, not to implement the Directive), the State could hardly be said to be implementing Union law.”