Clashing Interpretations of EU Rights in Domestic Courts

Abstract

Ireland has been a cautious participant in the Common European Asylum System (CEAS). Each proposed CEAS instrument can be scrutinised by government, who may then decide whether to opt-in to that legal measure. To date, Ireland has opted into some asylum directives however has decided not to opt-in to other measures. The only opt-in exercised to date by Ireland on measures it did not opt-in to initially, has been the Reception Directive Recast 2013 (RCDr 2013). The immediate reason for opt-in was due to a decision by the Irish Supreme Court, N.H.V. v Minister for Justice, which determined that the absolute prohibition on freedom to work for protection applicants breached Irish constitutional rights. This decision of the Irish Supreme Court did not require Ireland to exercise an opt-in to the RCDr 2013. It was plausible, given Ireland’s cautious approach to Europeanisation of its domestic asylum law, that it would amend the constitutionally offending domestic legal provision, without reference to European reception norms. However, the decision to opt-in to the RCDr 2013, emerged as the preferred option quite soon after the Supreme Court decision. Constitutional formalities for exercising opt-in to the RCDr followed in January 2018. On June 30, 2018, Ireland completed its opt-in and transposition of the RCDr 2013 into domestic law, with the coming into domestic legal force of the European Communities (Reception Conditions) Regulations 2018 (2018 Regulations). There is one significant peculiarity within the 2018 Regulations that was bound to eventually require the Irish courts, or the Court of Justice of the European Union (CJEU), to determine whether Ireland had properly transposed the RCDr 2013. The 2018 Regulations, rather ingeniously, but as I argue below improperly, created two types of protection applicant. The first type of protection applicant, are those within the substantive status determination process within Ireland, and who have access to all reception rights under the 2018 Regulations. These individuals are referred to as ‘applicants’ under the 2018 Regulations. The second type of asylum applicant, deemed to be ‘recipients’ of reception conditions under the 2018 Regulations, are those subject to an unexecuted Dublin removal order. ‘Recipients’ of reception conditions under the 2018 Regulations have all the same rights as ‘applicants’ of reception conditions- with one significant exception- the right to work. With the legality of this to be determined ultimately by the CJEU, it is important to document how this issue arose within Ireland.