Tuesday 19 January 2021

Asylum Seekers subject to ‘Dublin procedures’ have a right to work under EU Law


Liam Thornton, Associate Professor, UCD Law School*

 *Reblogged with 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 occurs.

-          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 interpretation.

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 Directive.

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

…[N]o 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 states:

….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 Directive 2013.

**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

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