About this case:

• Citation:
  [2024] IEHC 548
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Barry O'Donnell

Delivering judgment for the High Court, Mr Justice Barry O’Donnell stated: “The only substantial reason given in the decision is that ‘SOC 6222 is currently on the ineligible list of occupations for an employment permit, and for that reason it was not possible to issue an Employment Permit’. If, as I must, take the reasons on their own terms, the only reason given was that, in fact, the guidance was treated as binding and determinative.”

Background

The applicant, a Korean citizen, came to Ireland on a student permission in September 2019 and found work with Wildcat Ink Ltd in Dublin. She subsequently obtained a working holiday permission and was later offered a permanent position as a tattoo artist, which required a work permit pursuant to the Employment Permits Act 2006, as amended.

In February 2022, the applicant applied for a General Employment Permit to allow her to take up the offer.

Her application was accompanied by a letter containing her submissions, inter alia that the position of “tattoo artist” did not appear on the ineligible list of employments set out in Schedule 4 of the Employment Permits Regulations 2017 (S.I. 95 of 2017) made pursuant to the 2006 Act, and so the identification of “tattooist” under code 6222 (“Beauticians and Related Occupations”) of the Standard Occupational Classification system (SOC) operated by the UK Office of National Statistics was insufficient to render the occupation ineligible.

The applicant further contended that the more appropriate classification would be that of “artist” falling under SOC 3411.

On 8 June 2022, the respondent refused the application for reasons to do with the applicant’s working holiday authorisation. Upon review, the applicant’s application was treated as an initial application and was refused again on the basis that the occupation was on the list of ineligible categories of employment.

The applicant’s solicitor applied for a further review. On 19 November 2022 the review officer upheld the refusal in a decision which stated that having considered all the circumstances, the occupation was ineligible by reference to SOC 6222 “Beauticians and Related Occupations” and so it was “not possible” to issue a permit.

Submissions

The applicant brought judicial review proceedings contending that the respondent fettered its discretion in concluding that the proposed employment was ineligible by reference to SOC 2010, instead of considering whether the employment was ineligible on its merits.

The applicant further argued that the respondent failed to comply with its duty to give reasons for the decision and failed to engage with her submissions.

The respondent argued inter alia that its reasons were adequate in light of Olaneye v. Minister for Business, Enterprise and Employment [2019] IEHC 553, in which the court accepted as adequate the simple conclusion that the occupation was not a Schedule 3 occupation, and further where the applicant clearly understood its reasoning in light of her submissions.

The High Court

Mr Justice O’Donnell considered inter alia the reasoning of Mr Justice Mark Heslin in Rodriguez v The Minister for Business, Enterprise and Innovation [2020] IEHC 174, to the effect that there was no explicit provision in the 2017 Regulations adopting the entirety of SOC 2010 nor making SOC 2010 binding in this jurisdiction.

The court also noted the judgment in Singh v The Minister for Business, Enterprise and Innovation [2023] IEHC 332, which concluded that where a position was not on the respondent’s “critical skills occupation list” in Schedule 3, the respondent was not obliged to “assign” an alternative SOC code to a position in order to determine whether it was on the list.

Mr Justice O’Donnell was not satisfied that “much, if any, weight can be given to the use of terms such as ‘all the circumstances of the application’ have been considered” having regard to Balz v. An Bord Pleanála [2020] 1 I.L.R.M. 637 and N.E.C.I. v. Labour Court [2021] 2 I.L.R.M. 1; [2021] IESC 36.

Highlighting that the applicant’s occupation was not on the Schedule 3 list but was not expressly listed in Schedule 4, the court found that there was no engagement with the applicant’s submissions as to why SOC 6222 was inappropriate to her occupation, a situation which did not arise in Olaneye.

The court highlighted the respondent’s acknowledgment that SOC 2010 was neither binding nor determinative and found that the reasons given did not demonstrate any exercise of judgment or discretion, in circumstances where the only substantial reason given was that “SOC 6222 is currently on the ineligible list of occupations for an employment permit, and for that reason it was not possible to issue an Employment Permit”.

As such, Mr Justice O’Donnell was satisfied that taking the respondent’s reasons on their own terms, “the only reason given was that, in fact, the guidance was treated as binding and determinative”.

The judge concluded that the decision-making process was flawed in the sense that if the reasons given were adequate, they demonstrated a failure to recognise that there was a discretion to be exercised and failed to set out that the discretion was in fact exercised.

Conclusion

Accordingly, the High Court granted an order of certiorari to the applicant quashing the respondent’s decision and remitted the matter back for reconsideration by a different officer.

Yoon v Minister for Enterprise, Trade and Employment [2024] IEHC 548