Associate Professor, UCD Law School*
permission from Liam Thornton’s blog.
The Court of Justice of the
European Union last week held in the K.S decision that Ireland’s 2018 Reception Regulations do not comply with
the 2013 EU Reception
Conditions Directive. Persons subject to a potential transfer under the
Dublin system have a right to enter the labour market in Ireland where:
No decision on their substantive protection
claim (not the Dublin transfer issue) has issued within nine months. As the
person is subject to a Dublin transfer process, and a substantive protection
claim is not being progressed, this iu essence provides a right to enter the
labour market within nine months. This right only ceases when the transfer to
the EU member state responsible for determining the protection application
The person is not responsible for the delay in
progressing the Dublin procedures/transfer.
Taking legal action to challenge a Dublin transfer
decision is not a delay attributable to the person challenging the Dublin transfer
decision; this is simply an exercise of legal rights explicitly provided to
protection applicants under the Dublin III Regulation.
Irish law on right to enter the
labour market for protection seekers, the 2018 Reception Regulations, sought to create two categories
of protection seeker. First, a person for whom a substantive decision on their
protection claim would be issued, and who was entitled to enter the labour
market (after 9 months if no decision was issued by then). Second, a person who
is potentially subject to transfer to another EU Member State under the Dublin
Regulation. This person would be entitled to all reception rights, excluding
the right to seek to enter the labour market.
The Irish High Court was of the view that the denial of
right to enter the labour market for protection applicants subject to a
potential Dublin removal was permitted under the 2013 Directive. Mr Justice
Humphreys also stated that the applicants were the ones responsible for delay
in processing their Dublin transfer, as they had taken court action to prevent
transfer to another EU Member State. However, the judge did make a preliminary
reference to the Court of Justice of the European Union to seek clarification
as to whether his interpretation of law was correct. In the meantime, Judge
Humphreys invited the International Protection Appeals Tribunal to follow his
Tribunal Member Cindy Carroll in
the International Protection Appeals Tribunal declined to
follow the approach of Mr Justice Humphreys and stated that EU law was
relatively clear on the issue: those subject to a potential Dublin transfer had
an entitlement to enter the labour market, once meeting all other conditions.
The context to both cases and my analysis of how the Court of Justice would
rule can be found in my May 2020 article in European Public Law here (open access version here).
The 2013 Reception Conditions Directive provides
that a protection seeker can seek to enter employment, where a first instance
decision on their protection claim has not been rendered within nine months. In
2018, Ireland opted in to this Directive, providing (in essence) the first time
that protection seekers could seek and enter employment in Ireland. However,
the Irish transposition Regulations, purporting to give effect
to the Reception Directive, did not grant persons subject to a potential Dublin
transfer an entitlement to seek and enter employment.
Advocate General de la
Tour, who issued his opinion on the case in September 2020,
stated that protection seekers subject to a potential Dublin transfer are
entitled to access the labour market, and Ireland could not argue that a
protection seeker was ‘frustrating’ their removal to another EU Member State by
legally challenging the transfer decision. This is essence was the same
approach adopted by the International Protection Appeals Tribunal.
The Court of Justice Decision
The Court of Justice of the
European Union has held that there is only one type of protection applicant in
European Union law, who is entitled to all reception rights and to access the
labour market under the Reception Directive 2013. This is clear from long
standing case law of the Court (see Cimade).
This interpretation is bolstered by the recitals to the Reception Conditions Directive
which emphasise the importance of dignity and self-sufficiency to all
requesting international protection, regardless of whether it is in the Dublin
process or the substantive determination of the protection claim process.
While the access to the labour market is not included within the 2013
Reception Directive definition of ‘material reception conditions’, access to
the labour market is a broad ‘reception right’ referred to elsewhere in the
The Court of Justice rejected the
attempt by the Irish High Court to interpret the Reception Directive as permitting
the denial of freedom to enter the labour market to protection applicants who
did not lodge their protection claim in the first EU Member State of entry, as
provision of the Dublin III Regulation requires an applicant for international
protection to lodge his or her application with the Member State of first entry
A protection applicant who
appeals a first instance decision that s/he be removed from say Ireland is not
responsible for delays in courts determining the matter. The High Court had
sought to fix all persons challenging a Dublin transfer decision as ‘abusing
rights’ and should not be entitled to access the labour market. As the Court of
Justice noted, the Dublin III Regulation explicitly provides a right for such
an applicant to challenge a Dublin Transfer decision. The Court of Justice
….the EU legislature
did not intend that judicial protection enjoyment by applicants…should be
sacrificed to the requirement of expedition.
The Court of Justice has made
clear that where a protection applicant subject to a Dublin transfer decision
is appealing such a decision, s/he continues to have an entitlement to work.
In essence, the Court of Justice
has upheld the well thought out and expert approach that the International Protection Appeals Tribunal would
have adopted, but for the decision of the Irish High Court in K. S. This Court of Justice decision is in no way
surprising, and even the most cursory engagement with past Court of Justice
case law on reception conditions and the Dublin Regulation would have led a
decision maker/judge to the same conclusion provided by the Court. Another
feature of note in this case (not solely applicable to access to the labour
market issues), is the decision of the Court of Justice, that when interpreting
Irish asylum and protection law that is based on Ireland’s opt-in to EU asylum
and protection directives, decision makers and judges, where appropriate, may
seek legal clarification by reference to Directives that Ireland has not opted into.
What happens now?
The 2018 Regulations clearly need
to be amended so as to confirm with Ireland’s freely accepted obligations under
European Union law. However, the decision of the CJEU is so clear, that in
processing permissions to enter the labour market by protection applicants
(subject to Dublin procedures), decision makers in INIS, Department of Justice
must ignore the 2018 Regulations and apply EU law directly. (The
labour market access permission system remains with Justice, rather than
with Children, Disability, Integration and Equality). Rather
than waiting for proceedings to conclude in the High Court or the International
Protection Appeals Tribunal, this right is effective immediately. It
therefore may be appropriate for
a fresh labour market access permission to be requested by protection
applicants whose rights are now recognized by this ruling, alerting decision
makers to their obligations under EU law due to this decision.
More broadly, this decision may
have impacts well beyond Ireland, as it clarifies (yet again!) that all
protection applicants enjoy all reception rights under the Reception Conditions
**Note: I am not a legal
practitioner and am unable to offer individual advice to people who may be
impacted by this decision, please ensure you contact your legal representative.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: RTE.ie