Ms Emily Logan:

My thanks to the Chair and to the members of the committee for the invitation to appear here today. I might begin by briefly referring to the relevant statutory functions of the Irish Human Rights and Equality Commission in the context of today's discussion. The commission is Ireland’s national human rights and equality body. We were established in November 2014 and enjoy full institutional independence. That means we are independent officers of the State and we account directly to the Oireachtas. Our founding legislation gives us a range of powers on a spectrum running from promotion and education activities, to significant powers to take proceedings, and to act as amicus curiae, or as adviser to the courts in superior courts in Ireland, and to initiate inquiries. I am sure members are aware that with NHV case, the Supreme Court judgment which has given rise to the issues under discussion today, the commission was amicusand intervened in the case.

A further statutory power of the commission is to keep under review the adequacy and effectiveness of law and practice in the State and to make recommendations on measures to strengthen, protect and uphold human rights and equality in the State. It is in this context that the commission has prepared a policy position on access to the labour market for applicants for international protection, or asylum seekers, which has been circulated to members, as well as to the Minister for Justice and Equality, in advance of today’s discussion.

The question of the right to work for asylum seekers has been a priority issue for the commission since its inception. One of the commission’s first acts as the newly constituted Human Rights and Equality Commission was its December 2014 Policy Statement on the System of Direct Provision, which highlighted the severe impact that lack of access to employment has on asylum seekers and their families and recommended that asylum seekers be permitted to work through opting into the recast directive. This is an issue that has been consistently pursued by the commission over the past number of years through our legal and policy work, including our direct engagement across eight centres of direct provision in Athlone, Galway, Kerry, Cork, Limerick and Dublin.

The document I have circulated outlines some of the more complex arguments in the amicuscase. As members will be aware, the Supreme Court’s judgment in the NHV case struck down as unconstitutional the absolute prohibition on access to the labour market for asylum seekers. Since the Supreme Court’s declaration in February, and in advance of opt-in to the reception conditions directive, interim measures are in place that permit asylum seekers to apply for work permits under the current law and to engage in self-employment. The combination of salary restrictions and ineligible sectors of employment applicable under these measures pose a very significant barrier to entry level employment, and in the view of the commission are insufficient in their scope to provide effective access to employment. The commission is also extremely concerned that in the absence of a means of accessing entry level or minimum wage employment, the self-employment scheme may serve to perpetuate vulnerability to labour exploitation and to discrimination in the workplace. This would be contrary to Ireland’s legal obligations to effectively protect against potential violations of equality and human rights standards.

Opting in to the directive presents an important opportunity for the State to put in place a sustainable solution to the long-running human rights and equality issue of access to employment for asylum seekers, bearing in mind that many of those seeking protection in Ireland may remain permanently in Ireland. Ensuring a right to work while seeking asylum is also critical to overcoming both direct and indirect discrimination and barriers to integration, in ensuring equality in access to employment and effective enjoyment of the human right to work and equal enjoyment of rights in the workplace. We have an obligation to put in place a framework for access to employment for asylum seekers that realises the constitutional protection of dignity of all persons, which is compatible with our international and European human rights obligations, and with our obligations under the Geneva Convention. Helpfully, the recast directive itself presents that opportunity. While the directive gives member states the power to set the conditions for access to the labour market, including the requirement to give priority to EU and European Economic Area citizens, they must do so in a way that ensures that asylum seekers have "effective access" to the labour market. It is the view of the commission that effective access can be achieved from the outset if a number of key principles are observed.

First, restrictions on the sectors in which asylum seekers may work should be limited to the greatest possible degree, and access to employment should not be contingent on wage, salary or working time restrictions that are not generally applicable to other jobseekers. Second, any limitations that may apply should be devised with the principle of "effective access" as the primary consideration. In the interests of transparently assessing that threshold, any limitations which may apply should be based on publicly articulated and available policy criteria, which are subject to regular review. Third, discrimination has a significant effect on blocking effective access to the labour market. Effective safeguards against discrimination are therefore an essential component in the design of the provisions. A targeted information campaign for all asylum seekers on the right to work and supports available in accessing employment and while in employment will be essential.

Finally, it is an established principle of equality and human rights law that, for particularly vulnerable groups, targeted policy measures may be required to make what is a right on paper a right in reality.

The Commission, in its legal work, has been made aware of significant administrative barriers faced by asylum seekers in accessing a range of services. This includes difficulties in getting medical cards and opening bank accounts, as well as exclusion from driving licence application processes. In order to ensure effective access to employment, the commission is of the view that the scheme for access to employment must incorporate necessary processes to ensure such administrative barriers are overcome, including through the training of officials, provision of accessible information, and the tailoring of identification requirements to the particular situation of asylum seekers.

Regarding the period of time a person who had applied for asylum in Ireland would wait before being able to work, I note that the recast directive requires member states to grant access to the labour market no more than nine months from the date that application was lodged. Having considered the expert opinion of the United Nation High Commissioner for Refugees, and indeed the standards set out by the European Union elsewhere, it would be our view that Ireland should adopt what is emerging as international best practice in this area and provide for access to the labour market to be granted no later than six months after an application for asylum.

The policy choices that Ireland makes in how it opts into this directive are critical, and should be given careful consideration by the Oireachtas. These policy matters extend well beyond the question of access to employment, which we are focusing on here today. Not least, opting in to the directive will provide that the provision of material reception conditions for applicants, otherwise known as direct provision, currently provided for under the executive administrative scheme on a statutory basis, is underpinned by EU law for the first time, which is a significant development.

These policy choices could, and should, usefully be considered by this committee in advance of the statutory instrument on opt-in being signed by the Minister. It is in this spirit that we have offered our views today on how effective access to employment for applicants for international protection could be achieved.