THE MINISTER FOR ENTERPRISE, TRADE
EMPLOYMENT, THE MINISTER FOR JUSTICE, IRELAND
THE ATTORNEY GENERAL Respondents JUDGMENT of Mr. Justice Maurice Collins delivered on 18 June 2026 Page 1 of 86 PRELIMINARY
Equality [2017] IESC 35, [2018] 1 IR 246 (“NHV”), this Court held that in certain circumstances applicants for protection enjoy a constitutional right to seek employment. Separately, as a matter of EU law – specifically Article 15 of Directive 2013/33/EU of the European Parliament
of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (in this judgment “the Reception Conditions Directive” or “the 2013 Directive”) – Member States have a duty to ensure that applicants for international protection “have access to the labour market” while waiting for their applications to be determined. Ireland decided to “opt-in” to the 2013 Directive in 2017
the 2018 Regulations were made for the purpose of giving effect to it in Irish domestic law. 3. In each case, however, the right is qualified. NHV makes it clear that the constitutionally-derived right of protection applicants to seek employment in the State differs significantly from the right enjoyed by citizens
that the State is entitled to impose significant restrictions on it. The EU right is also qualified. In the first place, it Page 2 of 86 applies only if “no later than 9 months” from the date of the application a first instance decision has not been made (
subject to the proviso that “the delay cannot be attributed to the applicant”): Article 15
more significantly, Member States are competent to “decide the conditions for granting access to the labour market”, subject to “ensuring that applicants have effective access to the labour market”: Article 15
whether or not the 2018 Regulations ensure “effective access” are central questions in this appeal.
immediately applied for international protection under the International Protection Act 2015 (“the 2015 Act”). When eligible to do so, AM applied for a Labour Market Access Permission (LMAP) under the 2018 Regulations
a permission issued to him with effect from 30 August 2023. 6. Reflecting Regulation 11
the Civil Service of the State (para (b)), local authorities (para (c)), the Defence Forces (para (k))
An Garda Síochána (para (l)) but also include (inter alia) “any other entity established by or under any enactment (other than the Companies Acts), statutory instrument or charter or any scheme administered by a Minister of the Government” (para (d)); “an entity established or appointed by the Government or a Minister of the Government” (para (g))
any “entity on which any functions are conferred by or under any enactment (other than the Companies Acts), statutory instrument or charter” (para (i)). Certain publicly funded institutions of higher education are also included (para (j)). Collectively, the Schedule 6 bodies effectively encompass the civil service
much if not all of the wider public service
public sector (including commercial “semi-states”). 7. For the purposes of these proceedings, the most notable concrete effect of the Regulation 11
in pharmacies in such hospitals), including hospitals operated by the Health Service Executive (established by the Health Act 2004) or by Children’s Health Ireland (established by the Children’s Health Act 2018)
hospitals established by charter or established by order made under the Health (Corporate Bodies) Act 1961.2 It also 2 Many hospitals throughout the State were established by an order made under the 1961 Act, including St James’s Hospital, the hospital that AM had dealings with
by whom he says he was offered a job interview before it realised that it could not employ him because of the conditions attaching to his LMAP: see St James’s Hospital Board (Establishment) Order 1971 (SI No 187/1971). Page 4 of 86 prohibited AM from providing services to any such hospital as a self-employed contractor. 8. While AM’s LMAP issued for a 12-month period, in the event he was granted a declaration of refugee status in October 2023 (effective from 19 October 2023). By virtue of section 53 of the 2015 Act, from that point AM has had an unqualified entitlement “to seek
enter employment”
“to engage in any business, trade or profession … in the like manner
to the like extent in all respects as an Irish citizen”
he was no longer subject to any restrictions arising under the 2018 Regulations. 9. The relevant period for the purposes of these proceedings is therefore the period between 30 August 2023 (when an LMAP issued to him)
19 October 2023 (when he was declared a refugee) — a period of seven weeks. In that period AM was free to seek employment (subject to the conditions of the LMAP)
he was, in fact, successful in obtaining a job as a pharmacy technician in a retail pharmacy
was working in that position at the time that he initiated these proceedings. However, AM was excluded (on pain of committing a criminal offence) from seeking employment in any public sector hospital or pharmacy, the area in which he wished to find employment. 10. Pointing to that exclusion as a concrete illustration of the effect of Regulation 11
Schedule 6 of the 2018 Regulations, AM claims that these provisions operate to unlawfully restrict access to employment for international protection applicants, both by reference to the constitutional right of such applicants to seek employment recognised by this Court in NHV
to the right of such applicants under the 2013 Page 5 of 86 Directive to access the labour market
the State’s corresponding obligation to ensure that such access is “effective access”. Those claims failed in the High Court, for the reasons set out in that court’s judgment of 20 November 2024 (Barry O’ Donnell J) ([2024] IEHC 660). AM now appeals that judgment. 11. For the reasons set out below, I would dismiss AM’s appeal
affirm the judgment
order of the High Court. This judgment also explains why I do not consider that it is necessary to make a reference to the Court of Justice of the European Union (CJEU) under Article 267 TFEU for the purpose of determining this appeal. Page 6 of 86 HIGH COURT PROCEEDINGS
JUDGMENT 12. These proceedings were initiated at the end of September 2023, at which point AM’s application for international protection was still being considered. On 4 December 2023 the High Court (Hyland J) directed a “telescoped hearing”
the papers were then served on the State Respondents (“the State”). The State opposed the application for judicial review. 13. AM’s Statement of Grounds seeks largely declaratory relief, including a declaration that the “prohibition” in Regulation 11
Schedule 6 “is disproportionate, unlawful
ultra vires” (Statement of Grounds, §D(a)), a declaration that such prohibition is a breach of the 2013 Directive (which, it is said, the State has failed to adequately transpose)
a breach of AM’s rights under the Constitution
/or EU law (§D(b))
a declaration pursuant to section 5 of the European Convention on Human Rights Act 2003 that Regulation 11
14 of the European Convention on Human Rights (ECHR) (§D(c)). The section 5 declaration was not pressed before the High Court
was not pursued in this Court. AM also sought damages (§D(f)) but before the High Court the parties sensibly agreed that the damages issue should be deferred pending the determination of the substantive issues. As a result, it was not debated before the High Court or before this Court on appeal.3 3 In practical terms, the claim for damages appears to be the gist of AM’s claim: none of the declaratory reliefs would appear to be of any concrete benefit to him at this stage, given that he is now a recognised refugee
, as such, enjoys the same employment entitlements as an Irish citizen. AM’s Statement of Grounds also asserted that Page 7 of 86 14. In his pleaded case, AM’s fundamental contention was that Regulation 11
unjustified limitation on his access to the labour market
therefore denied him the “effective access” to the labour market guaranteed by Article 15
40.3)
under various provisions of the Charter of Fundamental Rights of the European Union (“the Charter”), with particular reference to Article 15 (Freedom to choose an occupation
right to engage in work)
Although a number of affidavits were sworn by AM
his solicitor, the evidence put before the High Court on his behalf was in a number of important respects very limited. In his own affidavit (sworn on 22 September 2023, some 3 weeks after an LMAP had issued to him), AM states that he had been offered two jobs in the private sector
that he was then employed as a pharmacy technician. But (he continued) that job was “at a considerably lower level” than should have been the case given his particular experience
qualifications
, while the job paid €22 per hour, AM stated that he would have “expect[ed] to earn €40-€50 per hour if working at the appropriate level.”4 the prohibition on employment in the public sector could not properly be enacted by Ministerial Regulation
required enactment by the Oireachtas (i.e., by primary legislation): §E(f). However, that ground does not seem to have been relied on before the High Court
it certainly was not advanced before this Court on appeal. 4 §10. AM goes on to refer to the fact that he was waiting for his “PSI licence”, which he had applied for in February 2023 but explains that he was “qualified to work as [a] medication
patient safety specialist in the public sector pending the issue of the licence”: §11. Page 8 of 86 That is the limit of AM’s evidence as to his actual experience of the labour market as an applicant for international protection. He does not suggest that his earnings as a pharmacy technician were insufficient to support himself financially or to provide him with a dignified standard of living nor does he suggest that his employment in that capacity otherwise gave rise to any injury to his dignity or self-respect. In fact, AM says nothing at all as to his financial
living circumstances in that period.5 16. Furthermore, beyond the (limited) evidence of his particular experience as an applicant for international protection, AM did not present any evidence of how the LMAP regime actually operates in practice. There was no evidence before the High Court as to how long eligible applicants generally have to wait for the issue of an LMAP, what proportion of LMAP holders obtain employment
/or how long that process usually takes, the nature of the employment generally obtained by protection applicants or as to the conditions of such employment. Nor was any evidence put before the High Court as to the average time it takes for applications for international protection to be determined at first instance. All of these matters would appear to be important considerations in any assessment of how access to the labour market actually functions for applicants for protection in the State. 5 AM’s affidavit is silent as to where he resided while awaiting a decision on his application or what allowance (if any) may have been payable to him in that period. A weekly payment, known as the Daily Expenses Allowance, is payable to international protection applicants. The rate of payment depends on whether the applicant is in accommodation provided by the International Protection Accommodation Services (IPAS) or not (
it appears from the papers that AM was in IPAS accommodation). While the Daily Expenses Allowance is subject to meanstesting after 12 weeks, that would not have affected AM in the circumstances here given the brevity of his period of employment as an international protection applicant. Page 9 of 86 17. Moreover, while AM averred as to the effect of Regulation 11
Schedule 6 of the 2018 Regulations on his capacity to obtain a job in his preferred employment sector position (already subject to significant restriction in any event pending Pharmaceutical Society of Ireland (PSI) recognition of AM’s professional qualifications) there was no evidence before the High Court as to the effect of those provisions on labour market access in the State generally. What is clear from the evidence, however, is that AM was issued with an LMAP in a timely way, that he was as a matter of fact able to access employment without any significant delay (
in the pharmacy sector, though not in a position commensurate with his particular expertise
experience), at a rate of pay well in excess of the statutory minimum wage,
that his application for international protection was determined reasonably quickly (within a period of 9½ months). AM’s only specific complaint about his employment is essentially financial, namely that he would have expected to earn considerably more than he did if he had been able to obtain employment at an “appropriate level.”6 18. In the absence of such evidence, there is inevitably a somewhat abstract quality to AM’s case, effectively involving a claim that the exclusion of employment in the public sector – an exclusion that affected AM only for a very short period of time – is per se an infringement of the Constitution
/or a breach of the Article 15 right of “effective access to the labour market.” On any view, however, the 2018 Regulations appear to provide for broad access to the labour market given that, as a matter of fact, most 6 §10 of AM’s Affidavit sworn on 22 September 2023. Page 10 of 86 employment in the State is in the private sector.7 The public health sector is a significant employer8 but, as AM accepted in argument, the great majority of pharmacists operate in the private sector.9 In addition to employment in community pharmacies (the sector in which AM obtained employment), employment in industry
employment in certain hospitals (such as private hospitals) is open to LMAP holders with appropriate qualifications (
here it will be recalled that, until his pharmacy qualifications were recognised, AM could not work as a pharmacist in any event, either in the public or private sector: that limitation is not challenged by AM nor does he make any complaint as to the manner in which his application for recognition was dealt with by the PSI). 19. It might be thought that any assessment of whether the right to seek employment given by the 2018 Regulations satisfies NHV
/or amounts to “effective access” to the labour market for the purposes of Article 15 of the 2013 Directive (or not) necessarily involves an overall assessment of the degree of access granted by the Regulations, the conditions to which such access is (
/or might have been) subject
the practical impact of those conditions. However, that was not the approach of AM here. Instead, he seeks to have the relevant provisions of the 2018 Regulations condemned on the basis that they operated to prevent him from seeking his preferred employment in the 7 According to the Institute of Public Administration, public service employment accounted for approximately 15% of total employment in 2023: Boyle et al, ‘Public Sector Trends 2023’ (IPA, December 2023) at Figure 8 (page 18). 8 ibid. 9 See Pharmaceutical Society of Ireland, Pharmacy Workforce Survey Analysis Report (September 2023), page
it suggested that the temporary status of international protection applicants was inconsistent with employment in the public sector which (the State says) “is based on the provision of permanent positions”. The State also suggested that “unimpeded access” to the labour market in Ireland could operate as a “pull factor” (a factor making the State a relatively more attractive place in which to be an applicant for asylum, thereby inducing persons to come to the State to apply for asylum here). Finally, the State relied on the fact that other EU Member States also impose significant restrictions on access to their respective labour markets under the 2013 Directive
it put in evidence a considerable amount of comparative information directed to that issue, some of which is referred to further below. 21. In essence, the State’s position was that, notwithstanding the conditions imposed by Regulation 11
Schedule 6, the nature
extent of the labour market access granted by the 2018 Regulations is more than sufficient to satisfy both the Constitution
the 2013 Directive. Page 12 of 86 High Court Judgment 22. (Barry) O’ Donnell J’s judgment is admirably clear
comprehensive. He noted that there were certain areas of conflict on the affidavits. One was whether AM had actually been offered an interview for a pharmacist position in an excluded hospital (AM said he had but O’ Donnell J did not consider the evidence to go that far). Another was whether the restrictions/exclusions on his employment had had any concrete adverse impact on AM, given that in the relevant period AM had not yet obtained PSI recognition of his pharmacist qualification. Ultimately, the Judge took the view that the evidence demonstrated that AM was qualified for,
had sought employment in, the public health pharmacy sector
it was “common case” that during the relevant period AM had been “prohibited from seeking employment in the public sector” (Judgment, §42; also §84). As the 2018 Regulations had affected AM’s ability to access the labour market, the Judge considered that he was entitled to challenge their validity. That finding was not challenged in this appeal. 23. O’ Donnell J was satisfied that the State had “established … a concern about creating pull factors”
that such concerns were “borne out by historic experience.” He was also satisfied that the evidence established “that a large number of applicants for international protection do not succeed in achieving protection, whether by a grant of refugee status or other forms of protection.” Even if there was some dispute as to precisely what was revealed by the statistics before the court, “the core point made by the [State] … [was] supported by the evidence” (§43). On the other hand, the Judge was not convinced that “[the] fact that most employment in the public sector is of a Page 13 of 86 permanent nature” assisted “in considering the nature of the [2018] Regulations”; “the effect of the 2018 Regulations [was] to prohibit all employment – whether permanent or temporary – in a very wide range of job sectors that fall under the description of public services in Schedule 6” (my emphasis) (§44). 24. The Judge addressed the EU law issue first. He noted that AM had in fact accessed the labour market
that once he had obtained an LMAP he had been “entitled to access a broad range of potential employments”
had obtained employment in the private pharmacy sector. AM’s concern was not, therefore, about accessing the labour market per se but with obtaining access to “his preferred type of employment.” That was, in the Judge’s view, “a different proposition”
one which did not constitute a basis for successfully impugning the 2018 Regulations (§55). 25. After a detailed discussion of the CJEU’s decision in Joined Cases C-322/19
C385/19 KS v The International Protection Appeals Tribunal ECLI:EU:C:2021:11 (“KS”), the Judge stated that Article 15
lawfully resident third-country nationals [this is expressly provided for in Article 15
purposive readings of Article 15 coincided. He was satisfied that “effective access” encapsulated “a dual requirement (a) that the access is effective in the literal sense: it must be real
not illusory,
(b) schematically, that the type of access provided for must be capable of bringing about a level of selfsufficiency
a dignified standard of living” (§69). He considered that there was nothing either “in the text of Article 15 or [in] the overall context of the 2013 Directive to suggest that [its] purpose” was “to provide for a right on the part of applicants for international protection to access a particular or preferred sector within the labour market” (§70; original emphasis). On that basis, the Judge was not persuaded that Regulation 11
Schedule 6 operated to infringe AM’s “right to effective access”. Different Member States had adopted different approaches. AM had been able to access the labour market here
there was no evidence that he had not been able to provide for himself: his complaint was that he had not been “able to access his preferred sector of employment” but such access was not what the Directive was concerned to protect (§71). Neither was the Judge persuaded that the restrictions imposed by the 2018 Regulations were disproportionate. The right of access was “not freestanding” or “unqualified”: restrictions could be imposed provided they did “not impede effective access”
applicants for international protection in Ireland who had obtained an LMAP were entitled to seek any form of employment in the private sector
AM had in fact “succeeded in accessing such employment” (§72). That point was strengthened by the fact that, as a matter of EU law, Member States could exclude nationals of other Page 15 of 86 Member States from certain areas of the public sector under Article 45
uncertain) period of time could not be justified. That finding was, he observed, “firmly rooted in a finding that” such an absolute prohibition caused “damage to the individual’s self-worth
sense of [self]” (§87). He did not read NHV as establishing that an asylum seeker had a personal right to work simpliciter. In his view, the NHV right was best understood “as a freedom to seek work
the necessary analysis [required] the court to consider whether a restriction on that freedom [was] substantially justified” (§88). 28. The Judge observed that, in clear contrast to the position in NHV, there was “no indefinite blanket prohibition” on employment under the 2018 Regulations: “[t]he holder of a LMAP” was permitted to “work, subject to certain restrictions.” In considering whether such restrictions amounted to a breach of the rights of applicants for international protection, the Judge considered that the “starting position” was that non-citizens had no right to come to the State to seek employment (§§89-91). The State was entitled to draw “significant distinctions” between citizens
non-citizens in the area of employment
it was only “where the effect of a restriction on the freedom to … work” implicated “the core constitutional value of the dignity of the individual” that the court might interfere with the judgement of the legislature
(where appropriate) of the executive (§§94-95). Here, there was no basis for suggesting that the restrictions Page 16 of 86 imposed by the 2018 Regulations infringed the right to dignity of applicants (§101)
it could not be said that the Regulations impermissibly curtailed or burdened a freedom that was “already quite limited” (§105). In the Judge’s view, the State had “substantially justified” the restrictions on employment “as achieving ends … proportionate to the public interest”, while permitting applicants “effective access to the labour market, inter alia to achieve a degree of self-sufficiency”
, in the short period between the grant of an LMAP
the declaration of refugee status AM had been in a position to access the labour market
obtain employment in the private pharmacy sector (ibid). 29. AM’s application therefore failed
as a result the issue of damages did not arise. Page 17 of 86 APPEAL TO THIS COURT Grant of Leave 30. AM sought leave for a direct appeal to this Court from the judgment
order of the High Court. The Court granted leave ([2025] IESCDET 46), considering that the issue of whether the blanket prohibition on public sector employment in the 2018 Regulations was consistent with the obligation under the 2013 Directive to ensure “effective access” to the labour market was an issue of general public importance. In its Determination the Court also noted that AM contended that it might be necessary to make a reference to the CJEU. Arguments on Appeal 31. The fundamental point of difference between the parties on the EU law issue is how the question of “effective access” is properly to be assessed
in particular whether or not the State is required to justify
/or demonstrate the proportionality of the restrictions on the right of access that follow from the impugned provisions of the 2018 Regulations. 32. In argument, AM appeared to accept that Article 15 of the 2013 Directive does not oblige Member States to permit applicants for international protection unimpeded access to the labour market (though he did seem to contend that such ought to be the starting or default position)
that, at least at the level of principle, Member States are entitled to impose conditions on such access
that the power to do so may extend to the exclusion of applicants from specific sectors of the labour market. AM’s fundamental argument was that Member States were required to justify any such Page 18 of 86 exclusion
demonstrate that it was proportionate. Proportionality is (so AM argues) inherent in the concept of “effective access”
the exclusion of the entire public sector is arbitrary, unjustified by any rationale offered by the State
therefore disproportionate, thus going beyond what is permitted by Article 15 of the Directive. Furthermore (so AM says), he was not given “effective access” to the labour market in circumstances where he was excluded from seeking employment in the specific area where he wanted to work. In those circumstances, while AM had been allowed access to the labour market, such access was not effective access, such as might conform with the right to dignity underlying his right to seek employment. The right to “effective access” was, AM said, a right for each applicant, not one to be assessed to applicants as a category
it was no answer for the State to say to AM that (as counsel put it in argument) “you can take any old job”. If “effective access” falls to be assessed subjectively – as this argument seems to imply – it is difficult to see how any Member State could in practice impose any meaningful conditions on such access or exclude applicants from any sector of the labour market. 33. In his submissions, AM referred extensively to both the Opinion of the Advocate General (Richard de la Tour AG)
the CJEU’s judgment in KS
also relied on Article 15 of the Charter. 34. The State articulated a very different conception of what is required
permitted by Article 15 of the 2013 Directive. According to the State, the rationale for that provision was a practical concern with self-sufficiency
the preservation of the dignity of applicants for international protection
it was concerned with giving such applicants Page 19 of 86 an opportunity to obtain employment, rather than conferring a right to pursue their chosen professions or careers (
in this context the State said that there was – appropriately – a sharp distinction between the employment rights of applicants for international protection
of those to whom such protection has been granted). The State did not accept that any restrictions imposed by a Member State on labour market access were properly to be viewed as derogations from a general right of access, thus requiring specific justification. The requirement of Member States was to ensure “effective access”
what constituted “effective access” was to be assessed practically
realistically: the key question was whether applicants could in practice access employment or whether the impugned restrictions made it impossible or excessively difficult in practice for them to do so. Here, it was said, the 2018 Regulations permitted broad access to the labour market, including to the entire private sector (
it was common case between the parties that the majority of pharmacy jobs are in the private sector)
AM had in fact been able to access employment that was more than adequate to meet his objective needs (as counsel for the State observed, the hourly rate payable to AM as a pharmacy technician was a multiple of the statutory minimum wage).10 In concrete terms, that amounted to “effective access”. The State also laid considerable emphasis on the approach adopted in other Member States, many of which also imposed significant restrictions on labour market access under the 2013 Directive, without (so the State said) any apparent objection or challenge from the European Commission. 10 Which in 2023 was €11.30 per hour. Page 20 of 86 35. As for the constitutional law issue, the arguments largely covered the same ground, albeit framed by reference to this Court’s decision in NHV rather than the provisions of the 2013 Directive (though AM did emphasise the fact that the State had decided to implement NHV by opting into the Directive). AM says that, even allowing for the fact that the constitutional right identified in NHV is not absolute,
that the right to earn a livelihood does not confer any right to obtain “employment in a particular field”, “the blanket ban on public sector
semi state sector work” is overly broad
constitutionally impermissible. In response, the State emphasised that the right identified in NHV is different to,
ought not to be conflated with, the right arising under Article 15 of the Directive. NHV does not (so the State says) impose any requirement to grant “effective access” to international protection applicants; rather the absolute exclusion of applicants from the labour market for an indefinite time may breach their constitutional rights. However, AM had not been excluded from the labour market
therefore the High Court had been correct to dismiss the constitutional claim. Page 21 of 86 DISCUSSION The Right of Non-Nationals to Work in the State 36. From the establishment of the State, it has been the law that non-nationals (“aliens”) had no general entitlement to work in the State
could enter the State for the purposes of taking up employment only with an appropriate permission: Aliens Order 1925 (SI No 2/1925), Article 1
non-nationals in this context is a sharp one. The power to regulate (
to prohibit) the entry of non-nationals seeking to come to the State for the purposes of employment,
the power to regulate (
to prohibit) the entry of non-nationals into employment within the State, is an essential aspect of the State’s control over non-nationals
a fundamental incident of its sovereignty: Osheku v Ireland [1986] IR 733 (“Osheku”); Laurentiu v Minister for Justice [1999] 4 IR 26 (“Laurentiu”); Re Article 26
the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; Sivsivadze v Minister for Justice
Equality [2015] IESC 53, [2016] Page 22 of 86 2 IR 403
Gorry v Minister for Justice
Equality [2020] IESC 55, [2024] 1 IR
the protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure,
their activities
duration of stay within the State is
has been recognised universally
from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens ....” This statement has been cited with approval by this Court on many occasions, including in Laurentiu
in the Illegal Immigrants (Trafficking) Bill
arrangements the effect of which is to give particular categories of non-nationals the right to work
/or establish a business in the State. By reason of the arrangements commonly referred to as the Common Travel Area, citizens of the United Kingdom were exempted from the application of the Aliens Act 1935
for the purposes of the Immigration Acts are deemed not to be “non-nationals”, with the result that they are not required to obtain an employment permit in order to take up employment here. Following Ireland’s accession to the European Economic Community (as was) in 1973, nationals of other Member Page 23 of 86 States are entitled to come to the State for the purposes of looking for or taking up employment or establishing a business
similar rights now extend to nationals of non-EU Member States in the EEA
to Swiss nationals. 40. Subject to those – significant – qualifications, it remains the general position under Irish law that third-country nationals do not have any right to enter the State for the purposes of seeking employment here, or to enter into employment in the State, or to establish a business here, without first obtaining an appropriate permission
then subject to whatever conditions may be imposed on such permission. Asylum Seekers, Refugees
the Decision in NHV 41. Article 14
to enjoy in other countries asylum from persecution.” That Declaration was adopted in the immediate aftermath of the Second World War, in which (as the Preamble to the Declaration recites) “disregard
contempt for human rights [had] resulted in barbarous acts which have outraged the conscience of mankind”
which had resulted in the forcible displacement of millions of persons. There was also a recognition of a widespread failure to offer protection to nationalities
groups that had suffered persecution before
during the Second World War, particularly (but not solely) European Jews.11 11 Ireland was one of the States that attended the Evian Conference in 1938, convened to address the issue of German
Austrian Jewish refugees wishing to flee persecution by Nazi Germany. Ireland’s representative, Francis T Cremins, explained to the Conference that, while the Irish Government had “been happy to accept the Page 24 of 86 42. Three years later, in 1951, the United Nations adopted the Convention relating to the Status of Refugees. The Convention was limited in scope to persons fleeing events occurring before 1 January 1951 (the Second World War
its aftermath), within Europe. However, in 1967 the Protocol relating to the Status of Refugees was adopted by the UN General Assembly, removing those temporal
geographic limitations. In this judgment, I shall refer to the 1951 Convention, as amended
extended by the 1967 Protocol, as the “Refugee Convention” or the “Geneva Convention”. 43. Chapter III of the Refugee Convention contains a number of provisions relating to “Gainful Employment”. Article 17
population
its largely agricultural economy (Kennedy et al (eds), Documents on Irish Foreign Policy: Volume V 1937-1939 (Royal Irish Academy 2006) (Doc No 200 NAI DFA 243/67)). The Conference was an abysmal failure. Page 25 of 86 44. Article 19 deals with the “Liberal professions”
provides that “Contracting State[s] shall accord to refugees lawfully staying in their territory who [have relevant professional diplomas] … treatment as favourable as possible
, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” 45. Finally, Article 24 (“Labour legislation
social security”) provides that “Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of [employment conditions
social security]”. 46. These (
other) provisions of the Refugee Convention draw a distinction between refugees “lawfully in” the territory of a Contracting State
refugees “lawfully staying in” such territory. According to one leading commentator, although “lawfully staying” does not necessarily imply the “grant … of permanent residence, or establishment of domicile”, it does require presence in a state that “is ongoing in practical terms.” While “a formal declaration of refugee status” may not be necessary to establish “lawfully staying” – refugees in receipt of temporary protection who are de facto settled in the territory of a Contracting State may be “lawfully staying” – “rights which require lawful stay do not accrue to refugees awaiting the results of a formal process of status verification, as the purely provisional nature of such persons’ presence in the host state is at odds with the Convention’s reservation of these more integration-oriented rights for those who are expected to remain in the state party for a significant period of time”: Hathaway, The Rights of Refugees under International Law (2nd ed; 2021), page 925. Page 26 of 86 47. To the same effect is Hathaway
Foster, The Law of Refugee Status (2nd ed; 2014) where Articles 17, 19
24 are identified as rights that “inhere only once the refugee is ‘lawfully staying’ …, usually consequent to formal recognition of refugee status”: page 26. 48. Goodwin-Gill
McAdam, The Refugee in International Law (4th ed; 2021) also make it clear that these Articles apply only to refugees lawfully resident in the Contracting State, namely “those who are, as it were, enjoying asylum in the sense of residence
lasting protection”: pages 595-
Cultural Rights (ICESCR).12 However, other international instruments such as the Universal Declaration of Human Rights,
(in Europe) the European Social Charter are also invoked in this context.13 Whatever the merits of such claims –
they certainly do not (at least yet) appear to command general support in State practice14 – it follows from Article 29.6 of the Constitution that the Refugee Convention
the other international instruments invoked in this debate have the force of law in the State only to the extent expressly provided for by the Oireachtas (or, to the extent that such instruments are incorporated into EU law, by the EU legislator). While Ireland has ratified both the Refugee Convention
the ICESCR, it has not yet taken steps to incorporate the ICESCR into Irish domestic law, whereas the Refugee Convention has been part of Irish law for many decades. 12 For a discussion of Article 6
the expansive way in which it has been interpreted by the UN Committee on Economic, Social
Cultural Rights see the discussion in Hathaway, The Rights of Refugees under International Law, page 931
following. In his judgment in NHV, O’ Donnell J refers to a comment of the Committee on Economic, Social
Cultural Rights in 2005 emphasising the importance of the right to work both to the realisation of other human rights
as “an inseparable
inherent part of human dignity” (§17). Notably, he did not refer to, less still endorse, any of the statements of the Committee to the effect that such a right to work applies to everyone regardless of legal status, including those whose presence in the state concerned is “irregular”. 13 For a discussion of the right to work of asylum seekers more generally see, for instance, Costello
O’ Cinnéide, ‘The Right to Work of Asylum Seekers
Refugees’ (ASILE, 10 May 2021). Reference may also be made in this context to ‘The Michigan Guidelines on the Right to Work’
Cultural Rights acknowledges: see the commentary referenced in Hathaway, The Rights of Refugees under International Law at page 935, where it states that “the concrete reality [is] that most states impose labour market restrictions on foreigners; they do so because they believe international law entitles them to do so;
most states have not sought to formally interpret or reserve their Article 6 obligations because it is not understood as requiring them to guarantee the right to work to any non-citizen.” Page 28 of 86 51. Ireland acceded to the Refugee Convention in 1956
to the 1967 Protocol in 1968. Its accession to the Convention was expressly subject to a number of declarations
reservations including, with regard to Article 17, a statement that “the Government of Ireland do not undertake to grant to refugees rights of wage-earning employment more favourable than those granted to aliens generally.” Post-ratification, no immediate steps were taken to incorporate the Refugee Convention into Irish domestic law. Even so, in Fakih v Minister for Justice [1993] 2 IR 406
Gutrani v Minister for Justice [1993] 2 IR 427, the State was held to have bound itself to examine applications for asylum in accordance with the Refugee Convention on the basis that it had given an explicit commitment to the UNHCR to do so. However, it was not until the enactment of the Refugee Act 1996 (“the 1996 Act”) that the Refugee Convention was comprehensively given effect to in Irish law. 52. Subject to certain qualifications which for present purposes can be disregarded, the 1996 Act gave persons seeking asylum or protection in the State (whether arriving “at the frontiers of the State” or already in the State) the right to enter
remain in the State pending the determination of their applications: sections 8
9. Sections 15
16 are the equivalent provisions in the 2015 Act, section 16
remain or, as the case may be, to remain in the State for the sole purpose of the examination of his or her application, including any appeal Page 29 of 86 to the Tribunal in relation to the application.”15 A permission given under section 16
who is not otherwise given a permission to remain in the State, will cease to be an applicant for the purposes of that provision
will in principle be liable to removal from the State: section 3
Irish domestic law, such an applicant has the right to remain – to be “lawfully in” – in the State only for the purpose of having his or her application for protection determined. If that application is refused, prima facie that person has no further right to remain in the State
will be liable to removal (in practice, some unsuccessful applicants are given some form of permission to remain in the State). While there was some conflict on the affidavits as to the proportion of applications for protection that succeed, it is unnecessary to engage with the detail of that dispute here: the High Court Judge expressly found “that a large number of applicants for international protection do not succeed in achieving protection”
that finding is not challenged on appeal (§43). The fact that a “large number” of applicants for international protection (who are permitted to remain in the State solely on the basis 15 The language of section 16
in particular the reference to “sole purpose”, differs somewhat from the language in the 1996 Act
appears to reflect Article 7
withdrawing refugee status (“the Procedures Directive”). Article 7
who therefore lose their right to remain in the State) is a very relevant consideration in this context
was recognised as such by this Court in NHV. 54. On the issue of access to employment, the 1996 Act drew a very sharp distinction between the position of applicants for asylum
those recognised as refugees. Section 9
enter employment, to carry on any business, trade or profession
to have access to education
training in the State in the like manner
to the like extent in all respects as an Irish citizen”. That provision went a good deal further than was required by the Refugee Convention, not least because it became operative immediately on recognition
also because it gave recognised refugees exactly the same employment
self-employment rights as citizens, without qualification or limitation.16 55. Similarly, section 53(a) of the 2015 Act gives “[a] qualified person” (a person in respect of whom either a refugee or subsidiary protection declaration is in force) the entitlement “to seek
enter employment, to engage in any business, trade or profession
to 16 Save for the exceptional power of the Minister to make an order under section 17
training in the State in the like manner
to the like extent in all respects as an Irish citizen”. 56. EU law also draws a sharp distinction between applicants for asylum
recognised refugees for employment purposes. Successive directives have given applicants for asylum a highly conditional entitlement to access the labour market. In contrast, those recognised as refugees must be authorised “to engage in employed or self-employed activities subject to rules generally applicable to the profession
to the public service, immediately after the refugee status has been granted” (Qualification Directive, Article 26
those whose applications for protection have been assessed
determined to be well-founded is not technical or incidental. Applicants for international protection in 17 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification
status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection
the content of the protection granted. 18 Directive 2011/95/EU of the European Parliament
of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection,
for the content of the protection granted (recast). Page 32 of 86 the host country are permitted to enter
remain in the host country solely by reason of making a claim to such protection
for the purposes of having such claim appropriately assessed. Their presence while that claim is assessed is conditional, contingent
provisional. As the Judge here found, many such claims turn out, on assessment, to be unfounded (though that was clearly not the case in respect of AM’s claim). In the employment context, the position of such applicants cannot be equated with (
as a matter of domestic, EU
international law is not equated with) those who have been granted international protection
who as a result have an entitlement to reside long-term in the host country. Allowing unqualified access to the labour market to beneficiaries of international protection reflects their particular status
that long-term entitlement to remain. 58. Returning to the 1996 Act, however, a notable feature of it was the absolute prohibition on employment for asylum applicants in section 9
that continued to apply until the final determination of the application for asylum, regardless of how long that process took (
, in practice, it could take many years). The absolute
indefinite exclusion of any possibility of any form of employment clearly had a real potential to impact adversely on asylum seekers, not just in material/financial terms but also in terms of negative social
psychological effects.19 That had been recognised at EU level, first 19 Costello
O’ Cinnéide (see footnote 13 above) capture the dual aspect of the value of the right to work very well: “[t]he right to work has both instrumental
intrinsic value. Its instrumental value lies in the fact that work enables individuals to participate in social, economic,
political life,
crucially to earn a livelihood. Work is also intrinsically valuable, as people derive dignity
self-worth from their engagement with their Page 33 of 86 in the provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (“the 2003 Directive”)
then in the 2013 Directive which repealed
replaced it, each of which imposed on Member States an obligation (albeit in significantly qualified/conditional terms) to permit applicants for asylum/international protection access to the labour market. 59. The Directives are considered in more detail later in this judgment but, for present purposes, it is enough to observe that those Directives (
their travaux préparatoires) explicitly acknowledge the significance of access to work for the dignity, selfsufficiency
social inclusion of applicants for asylum/international protection. However, the 2003 Directive never applied to Ireland
Ireland did not participate in the adoption of the 2013 Directive
it did not apply to the State prior to 2018 when, in response to NHV, the State resolved to “opt-in” to it.20 environments
others through work.” Under the various iterations of the Reception Conditions Directives, the material needs of applicants for international protection must be provided for by the host Member State
in this State such material needs are intended to be provided for through the direct provision system (which also makes provision for the payment of a small weekly monetary allowance to applicants). The right to seek access to the labour market is not therefore the primary means – or at least not the sole means – for ensuring that the material needs of applicants are met. But that does not appear to me to take away from the broader point being made by Costello
O’ Cinnéide (footnote 13) as to the value of work in this context (a point also recognised by the Court of Appeal
by this Court in NHV). 20 The 2003 Directive was adopted pursuant to Title IV (Article 63) TEC. The 2013 Directive was adopted by the EU pursuant to Title V of Part Three TFEU (area of freedom, security
justice), specifically Article 78
never “opted-in” to it. Accordingly, the 2003 Directive never applied to Ireland (Protocol 4 TEC). As regards the 2013 Directive, Ireland did not participate in its adoption
was not initially bound by it (Protocol 21 TFEU). However, in the aftermath of this Court’s decision in NHV, the State decided to “opt-in” to the 2013 Directive as provided for in Article 4 of Protocol 21 (Article 4 refers to the “accept[ance]” of a Title V measure). That decision was approved by the Houses of the Page 34 of 86 60. NHV began life as a challenge to section 9
replaced by the 2015 Act. However, section 16
section 9
before the Court of Appeal (Ryan P
Finlay Geoghegan J; Hogan J dissenting) ([2016] IECA 86, [2018] 1 IR 246) but succeeded in this Court ([2017] IESC 35, [2018] 1 IR 246). 62. In the High Court, McDermott J held firstly that, given the terms of the section 9 prohibition, it was not open to the Minister for Justice
Equality to grant any employment permission to an asylum applicant (a finding upheld by the Court of Appeal
by this Court on appeal). As regards the validity of that prohibition, Oireachtas
the Minister for Justice
Equality then made the 2018 Regulations. Protocol 21 is discussed in more detail in my judgment in NS v Minister for Justice
Equality [2025] IESC 48. 21 NHV was originally one of two applicants, pursuing separate applications for judicial review which were heard together in the High Court. The applicant in the other application, FT (a national of Cameroon) did not pursue an appeal from the High Court. Page 35 of 86 McDermott J was satisfied that asylum seekers had no right to work or to earn a livelihood under Article 40.3 of the Constitution (Judgment, §31). But, even if they had such a right in principle, the State had a very broad power to regulate its “scope
exercise” (§32). Applying the proportionality test articulated by Costello J in Heaney v Ireland [1994] 3 IR 593 (“Heaney”) (at 607), McDermott J was not satisfied that the restrictions on employment imposed by the section were disproportionate (§§34-35). McDermott J went on to consider
reject arguments advanced by the applicants based on EU law
on Article 8 ECHR. I will consider the EU law argument further when discussing the judgment of Hogan J in the Court of Appeal. 63. The Court of Appeal (by a majority) dismissed NHV’s appeal. For Finlay Geoghegan J (with whose judgment Ryan P agreed), NHV’s status “as an applicant for asylum”, who had been granted leave to enter
remain in the State solely for the purpose of his application for asylum being determined, was central to assessing whether he had any constitutionally-protected right to work or earn a livelihood (§§25-26). In her view, the right to work or earn a livelihood was “inextricably linked to a person’s status within the State”
.3 could not be construed as giving such a right to applicants for asylum (§§27-28). Insofar as a right to earn a livelihood formed “part of the personal rights of [the] citizen protected by Article 40.3 [
] capable of enforcement against the State,” that flowed “from the social contract between the citizen
the State
[was] intimately connected with the [fundamental] entitlement [of the citizen] to live in the State” (§29). NHV therefore did not have any such constitutionally-protected right
the issue of whether section 9
, generally, “the State’s capacity to regulate or restrict the fundamental rights of non-citizens [was] … greater where” such non-citizens were present in the State “for reasons which [were] fleeting, accidental, temporary or conditional” (§139). As regards whether a non-citizen could invoke the constitutional right to earn a livelihood, certain categories of employment were or might reasonably be linked to citizenship (reflected in the provisions of Article 51 TFEU)
it could be envisaged that the State might reserve certain categories of public service to citizens (§141) but that was not the case so far as the majority of employment was concerned (§142)
, in Hogan J’s view, it followed “that non-citizens should in principle be permitted to rely on the constitutional right to earn a livelihood” (original emphasis) (§143). The dignity flowing from gainful employment was an important consideration in that context (ibid). Page 37 of 86 65. Hogan J then turned to the question of whether section 9
, in principle, a legislative measure entirely excluding non-nationals “from the labour market for even a period of years would not … be unconstitutional” (§149). However, it was clear from Heaney that a legislative measure restricting a constitutional right must preserve “the essence of the constitutional right in question” (§150). Here, “the open-ended
indefinite exclusion” of applicants for asylum from the labour market contained in section 9
, for that reason, failed the Heaney proportionality test (§155). Hogan J would therefore have granted a declaration that section 9
] capable … of applying for very many years” to individual applicants such as NHV (§157; also §§168-169). That, Hogan J observed, sapped applicants’ “autonomy
self-respect”
compromised the “key constitutional objective of preserving the essential dignity of the individual” leading ultimately to psychological difficulties
, in certain instances, psychiatric disturbance (§151). 66. Hogan J rejected NHV’s other grounds of challenge. In his view, nothing in the jurisprudence of the European Court of Human Rights suggested that the ECHR protected “a substantive free-standing right to earn a livelihood” (§§160-161). As regards NHV’s contention that section 9
therefore did not fall within the scope of the Charter (§77). However, Hogan J went on to consider the effect of the Charter in any event. Given that Ireland subsequently opted into the Reception Conditions Directive, this part of his analysis (with which the other members of the Court of Appeal agreed) is worthy of particular note. Its “apparently broad language” notwithstanding, Hogan J was not persuaded that Article 15
to pursue a freely chosen or accepted occupation”) conferred a right to work on everyone “who happen[s] to be within the territory of the [EU]”, including third-country nationals. Any such suggestion was inconsistent with Article 15
in the absence of any such authorisation, Article 15
that no issue arose under the Charter or the ECHR (§11). Addressing the constitutional question, he emphasised the blanket nature of the prohibition on employment that followed from section 9
freedom of the individual which the Preamble tells us the Constitution seeks to promote” (§16)
, in that context, he cited with approval (though without necessarily endorsing every aspect of it) an extract from General Comment No 18 on the right to work adopted by the UN Committee on Economic, Social
Cultural Rights (24 November 2005) emphasising the importance of the right to work to human dignity
to the realisation of other human rights (§17). It followed, in his view, “that a right to work at least in the sense of a freedom to work or seek employment [was] a part of the human personality
,” having regard to Article 40.1 of the Constitution, could not “be withheld absolutely from non-citizens” (§18). 68. However, O’ Donnell J accepted that there were clear differences between citizens on the one hand
non-citizen asylum applicants on the other which justify a “significant distinction in the field of employment”
“a number of legitimate considerations … permitting a policy of restriction on [the] employment” of non-citizens who were asylum seekers. That was “precisely the type of judgement which the Government
Oireachtas [was] required to make,
… courts should be extremely slow to second guess [such a judgement], even by reference to a proportionality standard”
, in his view “[e]ven if some employment [was] permitted after some time, it [did] not follow Page 40 of 86 that any employment should be permitted: it may be legitimate to limit that to defined areas of the economy, perhaps where there is a demonstrated need” (§§18-19). 69. However, section 9
permissible differentiation between citizens
noncitizens,
in particular between citizens
asylum seekers, to remove the right for all time from asylum seekers” (§20). Given that NHV had, at that point, been in the asylum system for more than eight years, during which time he had been prohibited from seeking any form of employment, the point had been reached when “the legitimate differences between an asylum seeker
a citizen” could no longer be said “to justify the exclusion of an asylum seeker from the possibility of employment.” The consequential “damage to the individual’s self worth,
sense of themselves” – which was borne out by “[t]he affidavit evidence of depression, frustration
lack of selfbelief” in NHV itself – was “exactly the damage which the constitutional right” (the right to seek employment) sought “to guard against” (§21). In principle, therefore, O’ Donnell J was “prepared to hold that in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking employment ... is contrary to the constitutional right to seek employment” (§22). 70. Denham CJ
Clarke, MacMenamin, Laffoy, Charleton
O’ Malley JJ agreed with O’ Donnell J’s judgment. Having given judgment, the Court initially adjourned consideration of the order to be made for a period of 6 months but ultimately made an Page 41 of 86 order declaring unconstitutional section 9
for that purpose the Minister for Justice made the 2018 Regulations. In argument, counsel for AM appeared to suggest that, in these circumstances, the constitutional right identified in NHV
the employment rights of applicants for international protection under the 2013 Directive should be treated as co-extensive. In my view, that is clearly not so. The scope of the NHV right to seek employment is a question of Irish constitutional law, unaffected by the provisions of EU secondary law
the issue of whether the labour market access regime established by the 2018 Regulations (as amended) is consistent with the Constitution is distinct from,
independent of, any question of its compatibility with EU law. The NHV Constitutional Right to Seek Employment
the 2018 Regulations 72. NHV is a significant decision. It identifies the “essential equality of the human person” as the foundation on which the Constitution is set (per O’ Donnell J at §16), thus recognising, as Quinn’s Supermarket v Attorney General [1972] IR 1 had previously recognised, “the radical equality that underlies our inherent value as human beings”.22 That recognition in turn provides the conceptual foundation for a coherent framework for addressing the application to non-citizens of the rights
freedoms protected by 22 See my judgment in Doe v Commissioner of An Garda Síochána [2025] IESC 44, §10, citing Binchy, ‘Dignity as a Constitutional Concept’ in Carolan
Doyle (eds) The Irish Constitution: Governance
Values
“the dignity
freedom of the individual” which the Constitution in its Preamble explicitly seeks to promote. It was on that basis that the Court concluded that the right to seek employment was part of the human personality
thus within the scope of Article 40.1 of the Constitution
therefore could not properly be absolutely withheld from non-citizens (§18). But the Court also made it clear that, in this context, the rights of non-citizens could not properly be assimilated to the rights of citizens. To the contrary, NHV expressly acknowledges that there is a “significant distinction” between citizens
non-citizens in the area of employment. As a result, the Executive
the Oireachtas are permitted to impose significant restrictions on the employment of asylum seekers
, as the branches of government to which such matters are assigned, the courts should give “considerable latitude” to their judgement (§§18-19). 73. Although he did so by a slightly different analytical route (which did not go via Article 40.1) Hogan J in the Court of Appeal reached essentially the same end point as this Court. He was also of the view that the State has broad powers to restrict the employment of non-nationals, even within the framework of Heaney proportionality, provided only that the “essence” or “core” of the constitutional right was respected
not negated. While O’ Donnell J did not use precisely that language, he clearly considered that the State enjoyed a broad regulatory power in this area, subject to ensuring an irreducible minimum of access such as to safeguard
preserve the “essential dignity” of asylum seekers
their “self worth,
sense of themselves”. For both Hogan J
this Court, the fundamental problem with section 9
in particular the exclusion of employment in the public sector, negate the “essence” or “core” of their constitutional right to seek employment or otherwise fail to satisfy the constitutional standard articulated in NHV. 75. The 2018 Regulations provide for a very significant degree of labour market access for such applicants, provided only that they have been waiting for at least six months for a first instance decision on their application. That threshold condition is itself significant, contrasting as it does with the period for which NHV had been excluded from employment by the time his appeal came before this Court. Far from being “openended” or “indefinite”, the period of exclusion under the 2018 Regulations is both defined
relatively short. Ireland did not elect to give labour market priority to EU citizens, EEA nationals
/or legally resident third-country nationals (as it could have done under Article 15
/or Swiss nationals) but that is a significantly less restrictive condition than full employment priority to EU/EEA nationals would involve (
it is not, in any event, challenged by AM; that is unsurprising given that there is no evidence of AM being affected by it). Another important feature of the labour market access regime is that it is not employment-linked. The grant of an LMAP is not dependent on the applicant having received an actual job offer
is not employment-specific. Subject to Regulation 11
is free to change employer
/or employment without any requirement to obtain Page 44 of 86 a new permission (the 2018 Regulations do impose certain notification requirements on both employee
employer but no requirement to obtain any further authorisation). In that respect the LMAP system differs significantly (
, from the perspective of the LMAP holder, advantageously) from the employment permit system that operates under the 2024 Act. The 2018 Regulations also permit self-employment, subject to the prohibition on contracting with any of the bodies listed in Schedule 6
subject also to Regulation 11
protections of Irish employment law in the ordinary way (though certain statutory protections – such as the protection from unfair dismissal – apply only to those with a certain minimum level of continuous service, which in practice may exclude protection applicants). 76. These important aspects of the regime established by the 2018 Regulations were barely acknowledged in AM’s submissions. AM effectively invites the Court to focus solely on the exclusion of employment in the public sector
, in particular, on the effect of that exclusion on his ability to obtain employment in his preferred area (as a “medication
patient safety specialist”)
to adjudicate (
condemn) the 2018 Regulations on the basis of that blinkered focus. In my view, that is not the correct approach. The question of whether the right to access employment given by the 2018 Regulations is such as to meet the requirements of NHV must be assessed objectively
in the round. The parameters of the NHV right are not to be determined by reference to the subjective preferences of individual applicants. Otherwise, the State’s regulatory competence in this area would effectively be set at nought. Page 45 of 86 77. Notwithstanding the exclusion of the public sector, the 2018 Regulations provide for broad access to employment in the State, both generally
with specific reference to the pharmacy sector. There is no evidence on which this Court could properly conclude that the exclusion of employment in the public sector has the effect of frustrating the right of access recognised in NHV or undermining its objectives. All the (limited) evidence is the other way: AM was able to obtain employment, as a pharmacy technician in a community pharmacy, at a reasonable wage, in the period prior to the determination of his international protection application. That was not “any old job” as was rather dismissively suggested in argument: it was a responsible
well-paid position that, on its face (
there was not a whit of evidence to the contrary) more than met the objectives of dignity, socialisation
social inclusion, financial independence
self-sufficiency
self-worth which the right to seek employment identified by this Court in NHV was intended to promote
secure. 78. The High Court Judge considered that the effect of the impugned provision of the 2018 Regulations was “not to breach a constitutionally protected right but to operate as a restriction on a freedom which itself has been found to be highly qualified in the case of applicants for international protection” (Judgment, §104). He also emphasised that “the policy considerations that underpin the restriction are matters very firmly located in the executive
legislative spheres
which must be afforded a considerable margin of appreciation” (ibid). Viewed in that light, he was satisfied that the 2018 Regulations provided effective access to the labour market
that the restrictions to which such access was subject were “substantially justified … as achieving ends … Page 46 of 86 proportionate to the public interest in regulating
managing the activities of persons who are permitted to remain on the territory of the State” (§105). 79. AM at all times bore the burden of establishing that Regulation 11
Schedule 6 of the 2018 Regulations amounted to an impermissible restriction of his constitutional right to seek employment as an applicant for international protection. That burden did not shift merely because AM sought to make the case that those restrictions offended the principle of proportionality: O’ Doherty v Minister for Health [2022] IESC 32, [2023] 2 IR
conditional, exception to that general rule. It is clear from NHV that the State is not required to give such applicants a right to access employment equivalent to that enjoyed by citizens. Such applicants have only a provisional
precarious right to be in the State in the first place,
there is a real prospect that many of them will be unsuccessful in their applications
therefore become liable to involuntary removal. NHV makes it clear that the State is entitled to have regard to those considerations in formulating policy in this area
that significant latitude is to be afforded to the judgement of the legislature
of the executive (involving the exercise of delegated legislative powers by it) even within the framework of applying a Page 47 of 86 proportionality test. The restrictions on access that apply under the 2018 Regulations have a rational basis, serve important State goals (as to which see the observations of Hogan J in NHV, §149)
do not impair the essence of the right to seek employment recognised in NHV, a right that is inherently highly qualified
conditional. 81. In particular, AM has not established that the exclusion of employment in the public sector restricts the right to such an extent as to undermine it or render it ineffective. There are obvious differences between public
private employment
the State has a broad competence in fixing the terms
conditions, including conditions of eligibility
access, in respect of employment in the public sector. NHV cautions that courts should be slow to second-guess the judgements made by the State in this area – such as the judgement made in adopting the 2018 Regulations –
in my view neither the arguments advanced nor the evidence produced by AM here come close to providing a basis for concluding that the exclusion of public sector employment impermissibly restricts the right to seek employment that applicants for international protection enjoy under the Constitution. 82. AM’s constitutional challenge therefore fails. That leaves for consideration AM’s EU law-based challenge to Regulation 11
Schedule 6. Page 48 of 86 Are Regulation 11
Schedule 6 incompatible with EU law? 83. The essential question presented by this aspect of AM’s proceedings is whether the 2018 Regulations ensure “effective access” to the labour market for applicants for international protection in the State. In order to address that question, the relevant provisions of the 2013 Directive
the background to those provisions must be considered, as well as the jurisprudence of the CJEU,
in particular the opinion
judgment in KS. Article 15 of the Charter must also be considered. The Background to the 2013 Directive
would be against both the general Page 49 of 86 aims of this proposal
the conclusion on reception conditions adopted by the Council on 30 November
1 December 2000. This Article seems a reasonable compromise that meets the mandate of the Council (some harmonisation on this issue) as well as the need of applicants for asylum
their accompanying family members to lead a normal life, without imposing on Member States the obligation to grant the right to work. Member States remain, therefore, in full control of the internal labour market, as they can decide the kind of work asylum applicants may apply for, the amount of time per month or per year they are allowed to work, the skills they should have, etc. …” (my emphasis). 86. The primary focus of the 2003 Directive was on material reception conditions (housing, food, clothing
a daily expense allowance) but Article 11 (“[e]mployment”) was undoubtedly an important element also. Article 11
provided the delay was not attributable to the applicant) “Member States shall decide the conditions for granting access to the labour market for the applicant.” Article 11 did not contain the language of “effective access”. Article 11
nationals of States parties to the [EEA]
also to legally resident third-country nationals.” Page 50 of 86 87. The recitals to the 2003 Directive emphasised the objective of “ensur[ing] full respect for human dignity”
promoting the application of Article 1 (respect for
protection of human dignity)
comparable living conditions in all Member States” (recital
the desire “to limit the secondary movements of asylum seekers” (recital
the right of those granted asylum or subsidiary protection to access employment is also reflected in EU secondary law.23 However, the adoption by the EU legislator of a specific
express obligation to provide for access to the labour market for applicants for asylum/international protection, even if in qualified terms, was on any view an important development.24 89. However, Ireland did not participate in the adoption of the 2003 Directive
never opted into it. 90. In 2008,
again in 2011, the Commission proposed the recasting of the 2003 Directive. The 2008 Proposal (COM
then in Article 26 of the Recast Qualification Directive, the provisions of which have already been referred to. Ireland opted into the Qualification Directive but not the Recast Qualification Directive. 24 See Costello
O’ Cinnéide (footnote 13) as well as, generally, Hathaway, The Rights of Refugees under International Law. Page 51 of 86 Article 11
therefore facilitate integration”
“would also promote self-sufficiency among asylum seekers.” The proposal therefore aimed “to facilitate access to the labour market” by providing, firstly, that asylum seekers should be able to access employment after 6 months had elapsed after lodging their application (a proposal which was not ultimately adopted)
, secondly, by stipulating that “the imposition of national labour market conditions shall not unduly restrict access”. The rationale behind that proposed amendment was “to better underline the objective of the current Article which [was] to ensure that asylum seekers are provided with fair opportunities to access employment in Member States.” 91. The Commission issued a revised proposal in 2011 (COM
the promotion of self-sufficiency, as well as observing that mandatory unemployment imposes costs on the host Member State. Thus, it was said, “facilitating access to employment [was] beneficial both for asylum applicants
the host Member State.” Later in the legislative process, in a Communication to the European Parliament on the Page 52 of 86 Council’s position at 1st reading (COM
many of the new provisions of the Directive – are concerned with the detention of protection applicants. No issue of detention arises here. Again, there is a reference to laying down reception standards sufficient to ensure applicants “a dignified standard of living
comparable living conditions in all Member States” (recital
“to limit[ing] the secondary movements of applicants” (recital
is in the following terms: “In order to promote the self-sufficiency of applicants
to limit wide discrepancies between Member States, it is essential to provide clear rules on the applicants’ access to the labour market.” Page 53 of 86 Finally, recital
… the principles recognised … by the Charter”. In particular, it states, “this Directive seeks to ensure full respect for human dignity
to promote the application of Articles 1, 4, 6, 7, 18, 21, 24
47 of the Charter
has to be implemented accordingly.” Notably, that list of Charter provisions does not include Article 15 of the Charter.
the delay cannot be attributed to the applicant. 2. Member States shall decide the conditions for granting access to the labour market for the applicant, in accordance with their national law, while ensuring that applicants have effective access to the labour market. For reasons of labour market policies, Member States may give priority to Union citizens
nationals of States parties to the Agreement on the European Economic Area,
to legally resident third-country nationals.
[to] describe such restrictions in detail”: Article 28
Annex 1
of the Council of 14 May 2024 laying down standards for the reception of applicants for international protection (recast) (“the 2024 Directive”) repealed the 2013 Directive with effect from 12 June 2026. Article 17 of that Directive deals with employment
differs quite significantly from Article 15 of the 2013 Directive, including as regards the nature
scope of the restrictions that Member States are permitted to impose on labour market access. One notable feature of the Directive is the provision in Article 17
related matters, including pay
dismissal (but not extending to access to employment). The 2024 Directive is an element of the EU’s Pact on Migration
Asylum. While Ireland did not participate in the adoption of the 2024 Directive (recital
the provisions relating to material reception conditions are reflected in Part 4 of the International Protection Act 2026. To date, however, no change has been made to the labour market access rules in the 2018 Regulations. In any event, the provisions of the 2024 Directive do not bear on the issues in this appeal. Page 55 of 86 The 2018 Regulations
the approach to labour market access in other EU Member States 96. Some further aspects of the labour market access regime created by the 2018 Regulations (as amended) may be recalled briefly. In the first place, the Regulations provide for labour market access after 6 months, whereas Article 15 of the 2013 Directive requires access to be given “no later than 9 months” from the date of application (the 2024 Directive now stipulates a period of 6 months).25 Secondly, as already noted, Ireland did not elect to give labour market priority to EU citizens, EEA nationals
/or legally resident third-country nationals. The option of granting such priority is specifically provided for in Article 15
, depending on the conditions of the labour market in a given Member State, the exercise of that option could, in practice, significantly restrict labour market access for international protection applicants. Thirdly, as already noted, the system of permitting labour market access in the State under the Regulations is not linked to (
is therefore not limited to) any specific employment or job offer. Subject to Regulation 11
is free to change employer
/or employment without the need for a fresh authorisation. Fourthly,
finally, the 2018 Regulations permit self-employment. 25 On the facts here, that is of some significance: had Ireland applied the 9-month cut-off (as it was entitled to do as a matter of EU law), the very earliest point at which AM would have been entitled to an LMAP under the 2018 Regulations would have been 6 October 2023, a mere 2 weeks before he was granted asylum. Page 56 of 86 97. Undoubtedly, the effect of Regulation 11
Schedule 6 is to impose a limitation on labour market access for international protection applicants. However, as I have already noted, most employment in the State is in the private sector. That is as true of employment in the pharmacy sector as it is true of employment generally. 98. In opposing AM’s application, the State put in evidence a number of reports giving comparative information about the implementation of the 2013 Directive in the EU (though the reports do not cover every EU Member State). It is evident from that material that in many Member States access to the labour market for applicants for international protection is subject to restrictions
/or exclusions at least as extensive –
, in some instances, considerably more extensive – than is provided for by the 2018 Regulations. 99. One such report was produced by the European Migration Network (EMN) entitled Integration of applicants for international protection in the labour market (October 2023). Another was a slightly more recent Policy Paper published by the European Council on Refugees
Exiles (ECRE) on The Right to Work for Asylum Applicants in the EU (January 2024). 100. The EMN Report reported that a small number of EMN Member States granted access only after a 9-month waiting period. A significant number of EMN Member States required applicants to obtain a work permit which in many cases could be applied for only by the employer. In some cases evidence of an employment contract or job offer had to be submitted
in five of those countries requiring a work permit, the grant of Page 57 of 86 a permit was subject to a “labour market test”, requiring proof that the position could not be filled by national workers, EU nationals or lawfully resident third-country nationals (pages 20-21). In seven EMN Member States, a new work permit had to be applied for if the applicant wished to change jobs (page 22). The Report went on to note that EMN Member States also “placed other conditions
restrictions on applicants … entering the labour market”, including by “restricting the type
form of employment that can be accessed” (Ireland is one of four Member States identified as imposing such restrictions)
, in the case of two Member States (the Netherlands
Luxembourg) “limiting the hours that applicants can work in a given year” (page 21). In addition, nine EMN Member States excluded self-employment (page 22). 101. A broadly similar picture is presented by the ECRE Report. Of the 19 Member States covered by the Report, six (including Ireland) are identified as imposing sectoral limitations on employment access, including significant limitations in Austria
Sweden (page 6). 102. One needs to be somewhat cautious about such material. It does not follow from the fact that particular restrictions
exclusions are imposed in other Member States that such restrictions
exclusions are necessarily consistent with Article 15 of the 2013 Directive. Furthermore, any such material simply gives a snapshot of the law
practice in Member States at a given point in time
these are subject to change. For instance, in Austria it appears that decrees limiting employment to specified sectors of the economy only,
to specific time periods in the year, were annulled on procedural Page 58 of 86 grounds by the Austrian Constitutional Court (Verfassungsgerichtshof) in June 2021.26 However, access for applicants for protection is restricted by the application of a labour market test
applicants must first obtain a work permit which can only be applied for by the prospective employer.27 The position in the Netherlands has also changed. Asylum applicants were previously allowed to work for only 24 weeks per year but in November 2023 the Administrative Jurisdiction Division of the Dutch Council of State (Raad van State), the highest administrative court in the Netherlands, held that such a limitation was incompatible with Article 15 of the 2013 Directive.28 The Rulings of the Raad van State are referred to further below. 103. Nonetheless, this material clearly demonstrates that significant restrictions on access to the labour market apply in many Member States
suggests a common understanding amongst Member States that such restrictions are compatible with their obligation to ensure “effective access” to their labour markets. Given that one of the objectives of the 2013 Directive is to limit the secondary movement of applicants due to variations in reception conditions in different Member States (recital
were therefore unlawful: see Ebner, ‘Access to the Labour Market
Labour Market Integration of Asylum-seekers in Austria’ (International Organization for Migration, 2023), page 14. 27 Asylum Information Database (AIDA)
ECRE, Access to the Labour Market Report – Austria (Updated 9 July 2025), as well as Ebner (footnote 27). 28 Rulings 202303122/1/V6 ECLI:NL:RVS:2023:4341
202305065/1/V6 ECLI:NL:RVS:2023:
in accessing childcare – may have at least as much impact as any formal legal restriction. However, none of those matters featured in debate. The Advocate General’s Opinion
the CJEU Decision in KS
teleological interpretation” of Article 15, as well as a consideration of the principles identified in the CJEU’s earlier decision in Case C-179/11 Cimade
GISTI ECLI:EU:C:2012:594 (“Cimade
GISTI”), indicated that Member States were required to grant labour market access to applicants for international protection even 29 Regulation (EU) No 604/2013 of the European Parliament
of the Council of 26 June 2013 establishing the criteria
mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast). Page 60 of 86 where a transfer decision has been made in respect of such applicants (§50). Such applicants came within the literal scope of Article 15
“to remain in the Member State concerned” pending the outcome of the appeal (§68)
that it was only the actual transfer that brought to an end that Member State’s responsibility for granting the minimum reception conditions, including labour market access (§70). 107. The Advocate General then addressed Article 15
the general scheme of [the 2013 Directive] … support[ed] an interpretation of Article 15
of the right of access to the labour market conferred … by that provision” (§76). 108. According to the Advocate General, the aim of the 2013 Directive
the obligation to support fundamental rights supported that interpretation (§77). “[F]undamental rights constitute[d] the reference framework for the standards for the reception of applicants” (referring to recital
the provisions of Chapter II of the 2013 Directive were “intended to guarantee the effective protection of the applicant in the host Member State by supporting his or her needs … in a way which respects his or her fundamental rights, in particular his or her dignity,
ensures equal treatment” (§78). “The reception conditions laid down by [the 2013 Directive] concern[ed], above all, making provision for the basic
immediate needs of the applicant”
the CJEU had, in Cimade
GISTI (dealing with the 2003 Directive) held that an applicant could not be deprived of such material reception conditions “even for a temporary period”, as that “would be incompatible … with the purpose of [the 2003 Directive]
the requirements of Article 1 of the Charter, under which human dignity must be respected
protected” (§79). Other reception conditions laid down by the 2013 Directive, while “not intended to meet the applicant’s vital needs,” were nonetheless “aimed at ensuring respect for fundamental rights enshrined in the Charter, [including] … the right to engage in work (Article 15 of the Charter
He went on to state that “[a]ccess to the labour market … therefore serve[s] to meet an objective Page 62 of 86 need of the applicant during his or her stay on the territory of the host Member State” (ibid)
Member States could not “deprive an applicant of that reception condition without running the risk of disregarding the objectives [of the Directive]
the [applicant’s] fundamental rights” under the Charter (§81). Recitals
to promote his or her self-sufficiency” (§82). “The right to work, as enshrined in numerous … human rights instruments, play[ed] a role not only in the personal development of the individual
in his or her social
economic integration into society, but also in preserving his or her dignity” (§83). The Advocate General then referred to various sources emphasising the link between employment
human dignity, including this Court’s decision in NHV. Excluding an applicant from access to the labour market could also have adverse consequences for the applicant’s standard of living
give rise to a risk of infringing the principles in Articles 1
4 of the Charter (citing here the decision of the European Court of Human Rights in AL.K. v Greece App No 63542/11 (ECHR, 11 December 2014)). There was therefore “no justification for depriving an applicant in respect of whom a transfer decision [had] been [made] from access to the labour market as long as he or she [was permitted] to remain [in] … the host Member State” (§89). That conclusion was confirmed by the fact that the 2013 Directive was intended to ensure the equal protection of applicants
was “not intend[ed] to introduce a variable-geometry system of rights … in which there [was] a difference in treatment between third-country nationals whose applications are examined by the host Member State
those whose applications Page 63 of 86 [were] to be examined by the Member State designated [under the Dublin III Regulation]” (§93). 109. The CJEU was also of the view that the 2013 Directive did not permit the wholesale exclusion from the labour market of applicants for international protection who were the subject of a transfer decision but who remained for the time being in the host Member State. The making of a transfer decision did not alter their status as “applicants” for the purposes of the Directive (§§64-65). That interpretation was supported by a consideration of Directive 2013/32/EU
of the Dublin III Regulation (§66)
was consistent with the judgment in Cimade
GISTI (§67). The court then continued: “68 Although access to the labour market is not, strictly speaking, a material reception condition within the meaning of Article 2(
benefits conferred by that directive on any applicant for international protection whose application has not been finally determined. Accordingly, the obligation on the Member State concerned, pursuant to Article 15
comparable living conditions in all Member States should be laid down. The Court has also stated that respect for human dignity applies not only with regard to asylum seekers present in the territory of the Member State responsible pending the decision on their application for asylum but also to asylum seekers awaiting a decision on which Member State will be held responsible for their application (judgment of 27 September 2012, Cimade
GISTI, C-179/11, EU:C:2012:594, paragraph 43). As the Advocate General observed in point 85 of his Opinion, work clearly contributes to the preservation of the applicant’s dignity, since the income from employment enables him or her not only to provide for his or her own needs, but also to obtain housing outside the reception facilities in which he or she can, where necessary, accommodate his or her family. 70 In addition, recital 23 of Directive 2013/33 states that one of the objectives pursued by that directive is to ‘promote the self-sufficiency of applicants’ for international protection. In that regard, it must be borne in mind that, as the Commission pointed out in its Proposal for a Directive of the European Parliament
of the Council of 3 December 2008 laying down minimum standards for the reception of asylum seekers (COM
to the host Member State. Simplification of Page 65 of 86 access to the labour market for those applicants is likely to prevent a significant risk of isolation
social exclusion given the insecurity of their situation. The self-sufficiency of applicants for international protection, which is one of the objectives of Directive 2013/33, is also thereby promoted. 71 Conversely, preventing applicants for international protection from gaining access to the labour market is contrary to that objective, in addition to placing costs on the Member State concerned as a result of the payment of additional social benefits. The same is true if an applicant who is the subject of a decision on transfer to another Member State is prevented from accessing the labour market during the entire period between the date of lodging his or her application for international protection
the date of acceptance of his or her transfer to the requested Member State, a period to which is added the period corresponding to the actual examination of his or her application, which may last up to six months from the date of acceptance of the transfer of the person concerned by the requested Member State.” Accordingly, the CJEU held, Article 15 of the 2013 Directive had to “be interpreted as precluding national legislation which excludes an applicant for international protection from access to the labour market on the sole ground that a transfer decision has been taken in his or her regard under the Dublin III Regulation” (§73). Page 66 of 86 110. Cimade
GISTI, to which KS refers, concerned access to material reception conditions under the 2003 Directive, the CJEU holding that Member States were obliged to grant the minimum reception conditions to applicants the subject of a transfer request under Regulation (EC) No 343/2003. Such an interpretation reflected the terms of the 2003 Directive
was consistent with its general scheme
purpose
in particular the objective of ensuring full respect for human dignity
promoting the application of Article 1 (dignity)
The subsequent CJEU decisions in Case C-79/13 Saciri ECLI:EU:C:2014:103
Case C-233/18 Haqbin ECLI:EU:C:2019:956 – which were also concerned with access to material reception conditions rather than any issue of access to the labour market – similarly emphasise respect
protection of human dignity as the fundamental objective of the 2003
2013 Directives. Applicants must not be deprived of the protection of the minimum standards laid down by those Directives – including a dignified standard of living sufficient to ensure their subsistence – even temporarily: see, in addition to Cimade
GISTI, Saciri
Haqbin, Case C-97/24 SA
RJ v Minister for Children, Equality, Disability, Integration
Youth ECLI:EU:C:2025:594. What constitutes “effective access” for the purposes of Article 15
, as has been seen, AM was in fact able to exercise that right of access
to obtain employment. 112. In this context, “effective access” clearly means something different to unconstrained access. Under Article 15
such conditions may restrict access, subject always to the requirement to ensure that there is “effective access to the labour market.” That requirement would make no sense if “access to the labour market” in Article 15
following. However, the principle of effectiveness is broader in scope
, in this context, implies that Member States must not impose conditions that could undermine the purpose
effectiveness of Article 15 (its “effet utile”):ibid, §4.
case) focuses on the prohibition of employment in the public sector to the exclusion of any consideration of the broader question of the scope of labour market access actually provided for by the 2018 Regulations
then addresses only the impact of that prohibition on him. Even so, the evidence establishes that AM was able to access the labour market
obtain a responsible
relatively well-paying job as a pharmacy technician. 115. I referred above to rulings by the Dutch Raad van State in which that court held that Dutch employment rules limiting applicants for internati
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.