Important High Court judgment on applying for an Employment Permit without a valid immigration permission in Ireland 

The High Court recently delivered an important judgment regarding applications for employment permits in Ireland where the Applicant does not have lawful permission to remain on the State.

The Department of Enterprise Trade and Employment is responsible for the processing of employment permits in Ireland to enable non-EEA nationals to work in the State in highly skilled occupations where a labour shortage has been identified.

Ordinarily where a non-EEA national is already present in the State, they are required to hold a valid immigration stamp (permission to remain) in order for an employment permit application to be processed. However, the Minister for Enterprise Trade and Employment retains discretion to process an application for an employment permit even where the Applicant does not hold a valid Irish immigration permission pursuant to s.12(1)(i) of the Employment Act 2006 (as amended). This was previously confirmed by the High Court in the case of Ling and Yip Limited v Minister for Business, Enterprise and Innovation (2018 IEHC 546).

In the case of P v Minister for Business Enterprise and Innovation the High Court ruled recently that the Minister was incorrect in refusing to exercise discretion to grant an employment permit to the Applicant where he did not hold a valid immigration permission at the time of the application.

The Applicant in the case was an non-EEA national who applied for a General Employment Permit to work as a restaurant head chef. The Applicant had previously applied for permission to reside in the State as the permitted family member of an EU national however the application was refused by the Minister for Justice. At the time of the application for an employment permit, the Applicant was without a valid immigration permission to reside in Ireland however he submitted the application asking the Minister for Business to exercise discretion and grant an employment permit, which the Minister has the power to do, notwithstanding his immigration status.

The application for an employment permit was refused at first instance and on appeal due to the Applicants immigration status following which the Applicant instituted High Court Judicial Review Proceedings challenging the refusal. In addition to refusing the application for an employment permit, the Minister also failed to give adequate reasons to justify their failure to exercise discretion to approve the application.

The court ruled in favour of the Applicant and held as follows:

“For the various reasons indicated previously above, the court considers the impugned decision to be thoroughly flawed in terms of the reasoning given. As to the fettering of discretion point, the reasoning in the impugned decision is, with respect, so flawed and wanting in substance (and any evidence as to the Department’s contended-for policy and how it was brought to bear so notably absent) that the court considers that it cannot determine properly whether or not there has been a fettering of discretion – which points still further to just how inadequate the reasoning in the impugned decision unfortunately is. 24. As sought in the notice of motion, the court will grant the order of certiorari sought, quash the impugned decision and remit the matter to the respondent for fresh consideration.”

Sinnott Solicitors Analysis

The judgment reiterates the fact that the Minister for Business Trade and Employment can grant an employment permit to an Applicant who is resident in the State without a lawful immigration permission and it is not sufficient to refuse a persons application due to their immigration status without considering the specifics of a persons circumstances. This is an important decision in circumstances where there are many non-EEA nationals living in Ireland without a lawful immigration permission who are suitably qualified individuals to be granted employment permits. This judgment is even now more relevant following the recent changes to the employment permit system which significantly expanded the positions eligible to be granted employment permits in order to combat labour shortages in the Irish labour market. Sinnott Solicitors have previously written about the changes which can be read about here. Employers are desperately struggling to fill positions and we submit that the Minister should be exercising discretion and approving applications for employment permits in all cases where the Applicant does not a valid immigration permission when they are suitably qualified and the employer is unable to fill the position.

With offices in Dublin and Cork, Sinnott Solicitors have a dedicated team of Immigration Solicitors and Consultants who are experts on all Irish immigration matters including Irish Employment Permits and Employment Visas. If you are a non-EEA national currently residing in Ireland without a valid immigration permission looking to apply for an employment permit, or are an employer seeking to hire a non-EEA national who does not hold a valid immigration status, do not hesitate to contact our offices today on or 014062862 for assistance.