Successful challenge to refusal of Department of Business Enterprise and Innovation to grant Employment Permit to Stamp 4 holder
An important and interesting judgement was delivered by Mr Justice Barr in the High Court on the 3rd of March 2021 in the case of MD Liton Hossain -v- The Minister for Business Enterprise and Innovation.
The applicant in the case is a national of Bangladesh who was granted a Stamp 4 permission to remain (residence card as the family member of an EU national) valid until the 2nd of November 2021. He subsequently applied for an employment permit following the breakdown of his marriage and departure from the State of his wife in circumstances where his residence card would inevitably be revoked following his wife’s departure.
The applicant applied for an employment permit to work as a Chef de Partie which qualifies for an employment permit in the State. Notwithstanding his eligibility to be granted a permit, the Employment Permit Section refused the application due to his immigration status as a residence card holder. Judicial legal proceedings were taken before the High Court challenging the refusal of the Minister for Business Enterprise and Innovation.
The Department of Business refused to grant Mr Hossain an employment permit in circumstances where it maintained that he already had a right to work pursuant to his status as a Stamp 4/Residence Card holder.
It has been the policy of the Department of Business/Employment Permit Section to date to only process in country applications from persons who are resident in the State on a Stamp 1, 1A, 1G, 2, 2a and Stamp 3 immigration permission.
The Court held that having regard to the construction of subsection 2(10)(d) of the Employment Permits Act 2003 (as amended) the Minster is not precluded from issuing an employment permit to an applicant on the basis that the applicant already has permission to work by virtue of the immigration permission which he or she holds.
This means that the Minister is not precluded from issuing a work permit to an applicant who is resident in the State on a Stamp 4 permission to remain or a residence card holder.
The Court stated as follows:
“The court is satisfied that there is nothing in the Acts or in the regulations, which explicitly prohibit the Minister from issuing an employment permit to a foreign national, who already has a right to work by virtue of his or her immigration permission.
…where an applicant has a permission to work by virtue of an immigration permission, which due to a change in circumstances that has occurred, i.e. the departure of his EU citizen spouse, means that his immigration permission under Stamp 4 will either be revoked or will, at the very latest, expire by efflux of time on 2nd November, 2021, it is incumbent on the Minister to adopt a pragmatic and reasonable approach to an application submitted in such circumstances and give it the necessary consideration.”
The judgment in this case is a significant decision. In our daily immigration practices located in Dublin and Cork, we frequently see applicants whose marriages have broken down and whose residence permission risks being revoked. Many such applicants are highly skilled and educated individuals working in roles which are eligible to be granted employment permits. We are aware of many applicants who will now benefit from the findings of this judgment who can now apply for employment permits.
Sinnott Solicitors have a specialist team of Immigration Solicitors and Immigration Consultants located in our Dublin and Cork offices who are experts on all Irish immigration matters including employment permits. Should you have any queries with respect to any of the information contained in this article or any other immigration matters, do not hesitate to contact our immigration department in Cork or Dublin today on 014062862 or info@sinnott.ie.
