The High Court delivered judgment in the case of Julia Olivera Rodriguez v The Minister for Business, Enterprise and Innovation (2020 IEHC 174) on the 25th of March 2020. The judgment is an interesting decision dealing with the refusal of an employment permit and the application of the Standard Occupational Classification system (Soc 2010) by the DBEI when processing employment permits.
In our experience, this system causes employment permit applicants significant confusion when trying to ascertain whether they are eligible for an employment permit and the judgment sets out a helpful analysis of the laws and the implementation of the SOC system in this regard.
The Applicant in the case, who is a national of Venezuela sought Judicial Review of the decision of the Minister for Business Enterprise and Innovation to refuse her application to be granted an employment permit as a trainee accountant.
The Applicant is a highly qualified individual holding a BSc Degree in Public Accounting from Venezuela and a certificate in business accounting from CIMA (Chartered Institute of Management Accountants) obtained in Ireland. She applied for an employment permit for a trainee accountant role which was refused by the DBEI on the basis that that the occupation of trainee accountant is included under SOC Code 4122 and therefore on the Ineligible Category of Employment List.
The Applicant sought a number of reliefs from the court including:
- A declaration that the respondent erred in law in the decision of 15 July, 2019 in refusing to grant the applicant an employment permit on the basis that the position of employment (Trainee Accountant) was on the list of ineligible categories of employment referred to in reg. 29(1), and specified in Schedule 4, of the Employment Permits Regulations, 2017 (S. 1. No. 95 of 2017), specifically Soc Code 4122, in the premises that Trainee Accountant is not included or categorised under Soc Code 4122, being properly categorised within Soc Code 2421;
- A declaration that the respondent erred in law and/or breached the applicant’s right to fair procedures and natural and constitutional justice in the decision of 15 July, 2019 refusing to grant the applicant an employment permit on the erroneous basis that the position of Trainee Accountant was categorised under Soc Code 4122, instead of 2421, in the premises that the respondent had regard to factors which ought not properly have been included in the consideration and failed to have regard to factors which should properly have been considered;
The Applicant submitted that the Employment Permits Regulations, 2017 (S.I. No. 95 of 2017) utilise the Standard Occupational Classification system (Soc 2010) and that under Soc 2010, trainee accountants are coded to the relevant occupation or profession for which they are in training. Under these circumstances it was argued by the Applicant that the relevant code to the role was therefore Unit Group 2421, and she was thus eligible to be granted an employment permit as a trainee accountant.
The Respondent submitted that:
“While it is accepted that the 2017 regulations utilise the standard occupational classification system (SOC 2010) regulations, they do not adopt the UK standard occupational classification system, and variance of the SOC 2010 regulations are used by the Respondent herein to manage the critical skills occupations list and the ineligible occupations list in Ireland in respect of which employment permits are granted”
Decision of the Court
Mr Justice Heslin in the High Court refused to quash the decision of the Minister for Business Enterprise & Innovation to refuse to grant the Applicant an employment permit and found in favour of the Minister.
The court found that there is no explicit provision in the 2017 Regulations pursuant to which the entirety of SOC 2010 is adopted and was satisfied that there is no provision in the 2017 Regulations which states that SOC 2010 as applied in the United Kingdom, is binding in respect of applications for work permits brought in this jurisdiction pursuant to the 2017 Regulations.
The court held:
“I am satisfied that, were the court to find a legal obligation on the Minister such as contended for by the applicant,
it would involve interpreting the 2017 Regulations in a way which does violence to their contents and it would inevitably involve an impermissible exercise in judicial law making.
I am satisfied that there is nothing in the 2017 Regulations which requires the Minister to be bound by any opinion or advice by any third party, be they outside or within this jurisdiction, when it comes to the question of determining whether a particular job
description falls within Schedule 3 or Schedule 4 of the 2017 Regulations.
Schedule 3 of the 2017 Regulations very clearly sets out those employments in respect of which there is a shortage in relation to “qualifications, experience or skills” required for the proper functioning of the economy and these include “Chartered and Certified Accountants” with particular specialisms, “Qualified Accountants” with particular experience and “Tax Consultants” with specified experience. As a matter of fact, the applicant falls into none of the categories specified in Schedule 3. For this Court to hold that she does, would be to do violence to the specific words used in Schedule 3 and would amount to this Court deciding, impermissibly, that someone who is unqualified comes within a category which explicitly addresses shortages in “qualifications”. This Court has no power to ignore the clear wording in Schedule 3 of the 2017 Regulations and to hold that shortages in the qualifications set out in Schedule 3 are met by unqualified persons.
I am satisfied that the respondent was not obliged, when making a decision under the 2017 Regulations, to have regard to volume 2 of SOC 2010 as employed by the UK ONS, nor was or is the respondent Minister under any obligation to consider the views of the UK ONS, regardless of any comments appearing on the respondent’s website.”
Sinnott Solicitors Analysis
The judgment confirms that the Standard Occupational Classification system (Soc 2010) is not binding on the DBEI when processing applications for employment permits and is a guide only. Although the clarification is welcome, it does remain to be seen whether in practice, this is the case when employment permit applications are being processed.
The Immigration Department of Sinnott Solicitors have extensive experience in dealing with all categories of Employment Permit Applications and related immigration permissions. If you have any queries on the employment permit process or any matters raised in this article, do not hesitate to contact our immigration team today on 0035314062862 or firstname.lastname@example.org.