A.A and Others v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 13 March 2024
• Neutral Citation: [2024] IECA 57
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2023/14

Between/

A.A., W. M. and M.A. (A Minor Suing by his Father and Next Friend, A. A.)

Applicants/Appellants

and

The Minister for Justice

Respondent

[2024] IECA 57

Faherty J.

Haughton J.

Butler J.

Record Number: 2023/14

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 13 ^th day of March 2024

Background

1 . Mr. A. (hereinafter “ the appellant”) is an Egyptian national who on 20 July 2020 secured an offer of employment from E-Businesssoft Technologies Ltd. (“E-Businesssoft”) which has its registered offices at 20 Harcourt Street, Dublin 2.

2 . The appellant was offered permanent employment as a “ Software Application Developer” commencing 1 November 2020. The job description reads as follows:

• • Business Application Software Development using Full Microsoft Web Stack.

• • Perform complex analysis, designing and programming to meet business requirements.

• • Maintain, manage and modify all software systems and applications.

• • Define specifications for complex software programming applications.

• • Interface with end-users and software consultants.

• • Develop, maintain, and manage systems, software tools and applications.

• • Resolve complex issues relating to business requirements and objectives.

• • Coordinate and support software professionals in installing and analysing applications and tools.

• • Analyse, develop and implement testing procedures, programming and documentation.

• • Train and develop other software analysts.

• • Analyse, design and develop modifications and changes to existing systems to enhance performance.

3 . On 4 September 2020, the appellant was granted a Critical Skills Employment Permit by the Minister for Business, Enterprise and Innovation on foot of the employment offer from E-Businesssoft. The permit was valid from 1 November 2020 to 31 October 2022. It has since expired. The letter from the Employment Permits Section of the Department of Business, Enterprise and Employment which accompanied the Critical Skills Employment Permit advised that the permit “relates to employment only and it is not a residence permit or a permission to enter Ireland” and that nationals of visa-required countries (of which Egypt was one) were required to apply for a visa. The appellant was advised that in the visa application he would be “required to submit evidence of [his] professional qualifications, if required, as well as evidence of previous work experience, if required.”

4 . On 9 September 2020, the appellant, his wife (the second appellant) and his child (the third appellant) applied for visas to enter the State so that the appellant could take up his offer of employment in the State. On 6 October 2020, the Minister for Justice (hereinafter “the respondent”) refused the visa application (hereinafter “the first instance decision”). The reasons for the refusal were expressed as follows:

“I.D.: Insufficient documentation submitted in support of the application: — please see link to ‘Document Required’ as displayed on our website — www.inis.gov.ie

OC:- Observe the conditions of the visa – the visa sought is for a specific purpose and duration:- the application has not satisfied the visa officer that such conditions would be observed.”

5 . No further narrative accompanied those “codified” or “shortform” reasons save that the appellant was advised that he could appeal in writing “fully addressing all the reasons for refusal” within 2 months of the date of the decision.

6 . By letters dated 12 and 13 and 14 October 2020, the appellant lodged appeals on his and his child's behalf against the first instance decision. On 12 and 13 October 202, the second appellant lodged her appeal.

7 . The appellant's appeal letter advised the Visa Appeals Officer that the purpose of his applying for a long stay employment visa was to travel to and work in Ireland as “Software Engineer at E-business Technologies Ltd.”. Addressing the issue of insufficient documentation ( “ID”) as advised in the first instance decision, he queried what documents were missing on the basis that he had “supplied all possible supporting documents and much more”. He stated that he had consulted the website again to find that “the travel insurance and Accommodation proof only are missing” even though travel insurance was not mentioned as a requirement. He went on to advise that he had booked himself and his family “initial accommodation” for the first two weeks in Ireland, at a named hotel in Dublin, and that thereafter he would be responsible for and would secure “a well-prepared permanent family accommodation in Dublin” before the end of the two-week period. He also stated that he had arranged the required travel insurance for himself and his family members, to commence on 15 November 2020. The appellant attached his revised “Signed Applicant (sic) Letter including all [adequate] and needed details” (a reference to his initial application letter) and his “current Saudi Sponsor letter” (a reference to his then employer in Saudi Arabia).

8 . As regards the statement in the first instance decision that he had not satisfied the Visa Officer that the conditions of the visa would be observed ( “OC”), the appellant advised that he had called and e-mailed the Embassy in Abu Dhabi and in Riyadh but that “nobody wished to help me or clear the confusion of such reason”. He stated:

“I have been officially granted a Critical Skills Employment Permit…to work legally in Ireland for Two years…and [the] permit was submitted with my [visa] application. My employment contract, qualifications, trainings, courses, certificates and IELTS have been submitted to and approved by the Department of Business, Enterprise and Innovation and I also submitted all to my application with sponsor invitation letter.”

9 . The appellant went on to state that he would use his best skills and knowledge and experience to serve his employer and carry out his duties and tasks professionally and honestly. He undertook that he and his family would not be a burden on the State “under any circumstances” and that he had enough funds to bear all necessary fees and expenses and that his work benefits and salary would serve to avoid his being a burden on the State during his tenure in Ireland. Furthermore, he was committed to observing and obeying all visa and residence conditions.

10 . Thereafter, the appellant outlined his employment history in Saudi Arabia since April 2014 and details of his travel to third party countries, stating that he had observed all travel and visa conditions in those regards.

11 . An (undated) letter from E-Businesssoft which accompanied the appellant's appeal confirmed that he would be joining the company from 15 November 2020 and that “[h]e will be working as software engineer. He will receive a gross salary of 65,000 EUR per year. We will cover his medical insurance” (emphasis in original). A contact number and address were included.

12 . The letter from his Saudi employer confirmed that the appellant was working in “Specialised Marine Services Company” since 8 April 2014 as “Engineering Manager” at a monthly salary of 17,086 SAR.

13 . A further letter from E-Businesssoft dated 12 October 2020 addressed to the Visa Appeals Officer gave details of the appellant's travel and accommodation arrangements and made reference to the basis upon which the offer of employment was made to the appellant. I will refer to this letter in more detail later in the judgment.

14 . By decision dated 15 February 2021 (hereinafter “the refusal decision”), the respondent affirmed the refusal of the appellant's visa application. The bases for the refusal were set out in three shortform reasons, as follows:

“ID:- Insufficient documentation submitted in support of the application:-

please see link to 'Documents Required as displayed on our website-www.inis.gov.ie

INCO:- Inconsistencies e.g. contradictions in the information supplied

OC:- Observe the conditions of the visa: the visa sought is for a specific purpose and

duration:- the application has not satisfied the visa officer that such conditions

would be observed.”

15 . The letter continued:

“A Critical Skills Employment Permit was issued to you for the role of ‘Software Application Developer’ at E-Businesssoft Technologies. A detailed job description for the role of “Software Application Developer” in E-BUSINESSSOFT TECHNOLOGIES LTD. was submitted in your application. A letter from your employer submitted on appeal lists the job as ‘Software Engineer’. You have not provided any evidence that you have sufficient work history or qualifications to be able to do the specific job for which this work permit issued. There appears to be some confusion as to what exactly your role will be in E-Businesssoft Technologies but you have not shown any evidence of having worked or gained qualifications in any aspect of software engineering or development…”.

I will refer to this paragraph as “the additional narrative”.

Judicial Review

16 . On 19 April 2021, on foot of an ex parte application for leave for judicial review grounded on the appellant's affidavit and accompanied by a statement of grounds, the High Court (Burns J.) granted the appellants leave to bring judicial review proceedings in respect of the refusal decisions. A notice of motion was issued returnable on 10 May 2021. The respondent's Statement of Opposition was filed on 13 July 2021. The matter was heard by Hyland J. on 24 March 2022.

17 . In essence, the refusal decision was challenged on the basis that:

• • Inadequate reasons were provided for the refusal of the visa such that the appellant did not understand the basis for the refusal and could not adequately challenge the refusal.

• • No opportunity was afforded to the appellant to address or respond to concerns raised in the refusal decision (which had not been in the first...