High Court: Minister erred in law when refusing to renew employment permit for chef

About this case:

• Citation:
  [2018] IEHC 546
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Seamus Noonan

Granting an order of certiorari, quashing the decision, Mr Justice Seamus Noonan said that the Minister had erred in law by concluding that she had no discretion to grant the permit.

Background

The applicant, Ling and Yip, is a limited company which operates a restaurant in Co. Meath.

In April 2015, Ling and Yip employed Mr Kok Huo Khong, a Malaysian national, as an assistant chef. He was subsequently promoted to head chef and Ling and Yip applied for and was granted an employment permit for one year in July 2016.

The information furnished by Ling and Yip to the Minister for Business, Enterprise and Innovation, included a description of Mr Khong’s employment as a head chef and that his remuneration was €600 per week. 

On 3rd August 2017, eight days after Mr Khong’s permit had expired, Ling and Yip applied for a renewal of the permit.

In September 2017, the application was refused by the Department of Business, Enterprise and Innovation because:

1. Mr Khong was in the State without current immigration permission from the Minister for Justice, Equality & Law Reform – i.e. because his permission to remain lapsed with his employment permit;
2. the documentation submitted with the renewal application showed that Mr Khong had received less than the annual remuneration stated on the previous employment permit and fell below the minimum required by Employment Permits Act 2006 (as amended).

Ling and Yip appealed this decision by seeking an internal review. Upon appealing the decision, the director of Ling and Yip explained that there had been a delay in registering Mr Khong with the local Immigration Office due to a family bereavement which caused the Director to be absent from the country; that the correct remuneration was paid to Mr Khong as evidenced by the payslips furnished since January 2017, and that Mr Khong was always paid pursuant to the contract of employment.

On 31^st October, the appeal was refused, stating that since Mr Khong’s ‘previous permission had expired on 26th July and the application for its extension was submitted on 3rd August, Mr. Khong did not have the required immigration permission at the time of the employment permit application. Therefore, under s. 12(1) (i) of the Employment Permits Act 2006 (as amended) an employment permit cannot be issued’.

Furthermore, since ‘…neither the payslips nor the P60 confirmed that Mr Khong received the remuneration specified on his previous permit, in line with s. 20(8A)(b) of the Employment Permits Act 2006, (as amended), an employment permit cannot issue’.

High Court

In the High Court, Ling and Yip sought an order of certiorari quashing this decision.

Considering the Employment Permits Act 2006 (as amended), Mr Justice Noonan explained that the use of the word “may” in ss. 12 and 20, gave the Minister discretion to grant or refuse an employment permit even in the presence of the circumstances identified in those sections

Mr Justice Noonan said that the ‘permissive rather than mandatory language adopted by the Oireachtas places a duty upon the Minister to act fairly and judicially in exercising the power conferred by the statute’ (East Donegal Co-Operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 considered)

Contrasting the situation of an applicant being in the state without permission and working unlawfully for a lengthy period, Mr Justice Noonan explained that Mr Khong entered the State lawfully and worked here lawfully for several years but his employer was eight days late in applying for a new permit. These situations, according to Mr Justice Noonan, were not comparable but fell within the range of circumstances wehre the Minister must have regard to the exercise of discretion.

Stating that the Minister concluding that the employment permit “cannot be issued” was, as a matter of law, manifestly incorrect, Mr Justice Noonan said that it was clear that the Minister abdicated her responsibility to exercise the discretion so clearly conferred upon her.

Furthermore, Ling and Yip furnished an explanation for the fact that between July and December, 2016, Mr Khong was not paid the correct salary identified on the work permit, and that this had been  corrected from January onwards. Stating that the same considerations applied here, Mr Justice Noonan said that the second reason given by the Minister was is legally erroneous.

Satisfied that in making the impugned decision the Minister fell into error in concluding that she had in fact no discretion to grant the permit, Mr Justice Noonan granted the order of certiorari and remitted the matter to be reconsidered by the Minister.

• by Seosamh Gráinséir for Irish Legal News