Opting-in to the EU (recast) Reception Conditions Directive will bring significant positive changes for international protection applicants in Ireland
Interim scheme to apply from 9 February for circa four months
23 January 2018
Today (Tuesday), Minister Flanagan briefed Cabinet on his proposals for temporary interim arrangements for access to the workforce for international protection applicants from February 2018 until the date of entry into force of the EU (recast) Reception Conditions Directive. Government approved the Minister’s proposals for temporary arrangements and shared the Minister’s view that it is essential that Ireland is in a position to meet the EU Commission’s conditions to allow an opt-in. For this reason, a whole-of-government Implementation Group is working intensively to ensure the State can fully comply with the Directive.
On 30 November 2017, the Supreme Court announced that it would strike down Section 16(3)(b) of the International Protection Act 2015 (the prohibition on access to employment for applicants) on 9 February 2018. Minister Flanagan noted the steps Ireland had to take following the Supreme Court’s initial decision including a process to agree a whole of government response to the decision; consideration by Cabinet; the passing of motions by the Oireachtas; an application to the European Council and Commission; and then a four month period for the European Commission to confirm following Oireachtas approval. This means it is likely to be June when the Commission completes its process leaving a lacunae from 9 February.
Speaking after the Cabinet meeting, Minister Flanagan said:
“Last November, the Government decided that we would give effect to the Supreme Court judgment by opting into the EU (recast) Reception Conditions Directive and aligning our position with EU norms and standards. The preparations for the opt-in commenced immediately, in tandem with the necessary steps to complete the Oireachtas approval process. I am pleased to say that that approval process is now nearing completion and both Houses of the Oireachtas will consider the matter today following earlier consideration by the Joint Oireachtas Committee on Justice and Equality. It is regrettable that it will not be possible for us to have all stages completed, including Commission confirmation of our participation in the Directive by 9 February. For this reason, I proposed temporary measures to Government today to bring greater clarity to applicants who wish to access the workforce during this interim period. I want to stress that these limited arrangements are temporary in nature and will only operate until all steps are completed to allow opt in to the EU (recast) Reception Conditions Directive.
Government has agreed that from 9 February 2018 until the date of entry into force of the EU Directive:
- The default position will be that all applicants for international protection will be able to access the Employment Permits System of the Department of Business, Enterprise and Innovation on the same basis as other non-EEA nationals;
- Under his discretionary powers, the Minister will introduce an administrative scheme to allow for access to self-employment for eligible applicants (applicants 9 months or more without a first instance decision); and
- The Implementation Group, established by Government, will continue to make all arrangements for the State to opt into the EU (recast) Reception Conditions Directive at the earliest time possible.
Minister Flanagan reaffirmed the Government’s commitment to opting into the EU Directive at the earliest possible time saying:
“My Government colleagues, Minister Stanton and I are all fully committed to the opt-in to the EU Reception Conditions Directive. The Directive provides enhanced protections and supports for applicants and their families while they await a final decision on their application. It goes beyond the narrow scope of simply providing for access to the labour market, which was all that was required of us by the Supreme Court. Instead, we chose to be ambitious and to align our system with the many important provisions found in the Directive, such as children’s rights, healthcare, education and material reception conditions.
“We all wish to see this implemented as soon as possible and to ensure that the temporary measures, which we have agreed today, will only apply for the shortest time possible. I can assure applicants and all stakeholders that the Government and I have not changed the agreed permanent response to the Supreme Court judgment; however we must provide for this temporary period while the Oireachtas completes its approval process and before the European Commission can commence its own compliance procedures to confirm our participation in the Directive”.
An information campaign will be launched shortly to inform applicants, NGOs, employers and all relevant stakeholders of the access arrangements that will apply under the temporary measures announced today. This information will be provided in advance of 9 February.
Note for Editors:
Immediately following the Supreme Court judgment last May, the Government established an inter-Departmental Taskforce to examine the issue and to propose appropriate solutions to Government. The Taskforce was comprised of representatives from nine Government Departments and from the Office of the Attorney General.
At its meeting on 21 November 2017, the Government accepted the recommendations of the Taskforce, including its key recommendation that the State give effect to the Court’s judgment by way of opting into the EU (recast) Reception Conditions Directive.
The State informed the Supreme Court of its decision at its hearing on 30 November last. The Court made its Final Order, under which, the prohibition in the International Protection Act 2015, which prevents applicants from accessing the labour market (Section 16(3)(b)), will simply be struck down from 9 February 2018.
The Government has established an Implementation Group to oversee the Oireachtas approval process and the four-month compliance procedure with the European Commission, which will commence following the formal notification of our wish to be bound by the Directive.
The Implementation Group is drawn from the membership of the Taskforce and is supplemented by participation from relevant operational areas in the Departments of Justice and Equality and Business, Enterprise and Innovation, and other Government Departments and services, as required.
Today, the Government has approved the following measures for the temporary interim period from 9 February 2018 until the date of entry into force of the EU (recast) Reception Conditions Directive:
(a) All applicants will be able to access the Employment Permits System of the Department of Business, Enterprise and Innovation on the same basis as other non-EEA nationals;
(b) Under his discretionary powers, the Minister will introduce an administrative scheme to allow for access to self-employment for eligible applicants (applicants 9 months or more without a first instance decision); and
(c) The Implementation Group, established by Government, will continue to make all arrangements for the State to opt into the EU (recast) Reception Conditions Directive at the earliest time possible.
- The Supreme Court judgment of 30 May 2017 found that in an international protection system with no temporal limits as to when the application process will be concluded (as is the case in Ireland) an absolute prohibition on the right to work for persons in the protection process is contrary to the right to seek employment under the Constitution.
- The Court recognises that there are complex matters in relation to this judgement and that the State has a right to determine not just who can enter the State but also to regulate what their rights are while within the State, particularly as regards employment. Accordingly, the Court adjourned consideration of its Order for six months to enable the State to consider its response.
- By Government Decision of 11 July 2017, an Inter-Departmental Taskforce was established to examine the implications of the judgement and to propose appropriate solutions to Government as soon as possible.
- The Taskforce chaired by the Department of Justice and Equality with membership comprising of officials, from the Departments of: Employment Affairs and Social Protection; Education and Skills; Health; Business, Enterprise and Innovation; Housing, Planning and Local Government; Children and Youth Affairs; Public Expenditure and Reform; and Finance; and from the Office of the Attorney General.
- The Taskforce has recommended to Government that the best option available to the State to comply with the judgement is to opt into the EU (recast) Reception Conditions Directive (2013/33/EU) which lays down standards for the reception of international protection applicants.
- Article 15 of the Directive provides that applicants shall have access to the labour market no later than 9 months from the date when the application for international protection was lodged, if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant. The Member State decides on the conditions for access to the labour market, in accordance with their national law, while ensuring that applicants have effective access to the labour market.
- The Directive also provisions for a range of standards for those in the International Protection system.
- Article 4 of Protocol 21 annexed to the Treaty on the Functioning of the European Union states that Ireland may at any time after the adoption of a measure notify its intention to the Council and to the Commission that it wishes to accept that measure. Under Article 29.4.7 of the Irish Constitution, any exercise of this discretion is subject to the prior approval of both Houses of the Oireachtas. Following the approval of both Houses of the Oireachtas, the Permanent Representative of Ireland to the EU formally notifies the European Council and the European Commission in writing of our wish to accept the measure. The Commission then has four months from receipt of this letter to confirm our participation. During this four months Ireland will be required to demonstrate to the Commission how it is compliant with each Article in the Directive.
- An opt-in to the Directive requires the approval of both Houses of the Oireachtas and formal approval of our application to participate in the Directive by the EU Commission. Both Houses are considering motions today (Tuesday, 23 January 2018)