The Cout of Appeal has refused to grant the state its legal costs against a Burmese man, who has spent more than seven years in direct provision, of his failed appeal over not being allowed work.
Having lived in direct provision since late 2008 on a €19 weekly allowance, the man said he has suffered “almost complete loss of autonomy” and depession and being allowed work was vital to his development, personal dignity and “sense of self worth”.
The continuing failure to determine the man’s application for protection allowing him stay here, plus the importance of the issues raised in his case which was rejected by a majority of two to one, constituted “exceptional” circumstances which justified refusing the state’s costs application, the three judge appeal court ruled on Wednesday.
Ms Justice Mary Finlay Geoghegan, presiding, said the court unanimously took the view the appropriate order on costs was that each side pay their own costs of the appeal.
Earlier, Nuala Butler SC, for the state, had argued it was entitled to its costs as the victor and also submitted, while the man was entitled to appeal the High Court’s rejection of his case, there were costs consequences of that.
When Mr Justice Gerard Hogan asked about "adverse" comments made by all three judges about the delays deciding the man's application, counsel said the man had brought several legal cases.
Ms Justice Finlay Geoghegan said that did not account for the delays deciding his applications.
The court heard the man appealed a refusal of refugee status after coming here in late 2008.
Arising from High Court findings of errors in how his applications were decided, a second re-hearing was held before the Refugee Appeals Tribunal in July 2015 and its decision is awaited.
Ms Butler said new systems have been introduced to speed up the international protection process and delays had been addressed. Because the man was before the courts, he had not availed of those and the normal rule that costs go to the winning party should apply, she argued.
Counsel for the man had submitted, given the importance of the issues raised, the State should make a contribution to his costs or, alternatively, there should be no order for costs.
The man’s case was back before the appeal court on Wednesday to deal with costs following the court’s two to one majority judgment the man does not have a personal right under the Constitution to work here.
Last month, Mr Justice Sean Ryan and Ms Justice Finlay Geoghegan disagreed with Mr Justice Hogan the open ended nature of the ban on work meant Section 9.4.b of the Refugee Act 1996, which requires an asylum application must first be dealt with before an applicant can seek employment, was unconstitutional.
The majority rejected as “too broad a propositon” that non-Irish citizens enjoy the same general rights as Irish citizens.
Mr Justice Hogan held the man has a personal right under Article 40.3 of the Constitution to work here. He found Section 9.4.b, by allowing open ended and indefinite exclusion, for over seven years now, from the labour market, was unconstitutional as it struck at the “very substance” of the man’s constitutional right to earn a livelihood.
