High Court: Court quashes Minister’s refusal to consider non-EU person’s employment permit due to his immigration status



Killian Flood BL
Killian Flood BL

The High Court has granted an order of certiorari against the Minister for Business, Enterprise and Innovation’s refusal to consider an employment permit application for a non-EU national. The key question in the case was whether the applicant was entitled to be considered for an employment permit when he already had a work permit due to his former wife’s status as an EU national.

The applicant had separated from his wife and was therefore due to lose his permission to live and work in Ireland. The Minister had claimed he could not issue an employment permit to a person who already has a right to work in the State by virtue of the immigration permission held by them. The High Court disagreed, holding that there was nothing in the relevant legislation which prevented the applicant’s employment permit from being considered.

Background

The applicant, Mr MD Liton Hossain, was a Bangladesh national who had married a UK woman and moved to Ireland. By virtue of being married to an EU national, he received a Stamp 4 immigration permission, which entitled him to work in the State. The permission was due to expire in November 2021.

Subsequently, Mr Hossain’s marriage broke down. His wife returned to the UK and filed for divorce. As such, Mr Hossain was no longer entitled to any further Stamp 4 permissions to live and work in the State. Mr Hossain notified his change in circumstances to Irish Naturalisation and Immigration Service and applied for an employment permit. Mr Hossain had been working in Ireland since moving here and received a further contract to work as a Chef de Partie for two years in February 2020.

In two decisions made by the Minister, Mr Hossain’s application for an employment permit was refused. The essential reason given to the applicant was that he could not be considered for an employment permit because he already had the Stamp 4 permission which exempted him from requiring an employment permit.

The applicant argued that he was going to lose his Stamp 4 permit imminently due to his divorce and that he therefore required an employment permit to remain in the State beyond November 2021. The applicant was mindful of the risk that he may be unlawfully resident or unlawfully employed in the State for a period if he was required to make a further application after the Stamp 4 expired.

In support of his decision, counsel for the Minister relied on section 2(10)(d) of the Employment Permits Act 2003 (as amended), which provided that a foreign national could not work in the State without a permit, unless that foreigner was entitled to work due to their immigration permit from the Minister for Justice. It was said that the proper construction of this section excluded the applicant from the employment permit scheme and that there was simply no jurisdiction to consider his application.

High Court

Mr Justice Anthony Barr considered the submissions in the case and concluded that there was nothing in the Act which precluded the applicant from making a permit application while already having a Stamp 4 permission. The court accepted the applicant’s submission that ordinary and natural meaning of section 2(10)(d) was that it merely relieved a person who had a Stamp 4 permission from the requirement of an employment permit. The judge said he was “satisfied that on a proper construction of s.2(10)(d), it does not exclude or prevent the Minister from issuing a work permit to an applicant, solely on the basis that that applicant already has a permission to work” by virtue of his immigration permission.

The court accepted that the Minister had a wide discretion under the Act to provide an employment permit. However, none of the provisions which limited the Minister’s power referred to the immigration permission of an applicant. The court also considered Ling and Yip Limited v. Minister for Business, Enterprise and Innovation [2018] IEHC 546 and said there was a duty on the Minster to consider the individual facts of a case when exercising his discretion.

In light of this, the court said it was “incumbent on the Minister to adopt a pragmatic and reasonable approach to an application submitted in such circumstances” as the applicant’s case. Even though there might have been a small overlap between the expiry of the Stamp 4 permission and an employment permit, there was no reason why the employment permission could not issue. Equally, the court noted that the applicant had even offered to immediately give up his Stamp 4 permit if he was granted the employment permit.

The court rejected the Minister’s submission that, if the employment permission issued, then it would be “effectively divorcing his employment permit application from his immigration status”. Mr Justice Barr held that it was common for immigrants to Ireland to be granted employment permits before immigration permits, so there was in fact no issue in principle in “divorcing” the immigration issue from the employment issue in the case.

Conclusion

The court concluded that the Minister was not precluded from considering the applicant’s application for an employment permit due solely to the fact that he held a Stamp 4 permission. As such, the court held that the Minister was in error in refusing to consider the application. The court quashed the decision and remitted the matter back to the appropriate officer in the Minister’s department for fresh consideration. He also awarded costs in favour of the applicant.

© Irish Legal News Ltd 2021



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