Ali v Minister for Jobs, Enterprise and Innovation
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] IECA 55 |
| Docket Number | 2015 No. 282 |
| Court | Court of Appeal (Ireland) |
| Date | 26 February 2016 |
[2016] IECA 55
THE COURT OF APPEAL
Hogan J.
2015 No. 282
Ryan P.
Kelly P.
Hogan J.
Employment Permits – s. 12 and s.14 of the Employment Permits Act 2006 – Statutory Interpretation – Judicial review
Facts: This appeal concerned the interpretation of two overlapping provisions of the Employment Permits Act 2006 (?the 2006 Act?). The applicant sought an order to quash the respondent?s decision refusing to grant him an employment permit under the 2006 Act. The applicant resided in Ireland under a stamp 2 Visa that did not permit his wife and child to enter the State to live with him. If he obtained an employment permit he would be entitled to work for 40 hours a week and be permitted to bring his wife and child to reside with him in Ireland.
The applicant had been offered a full?time position as a sales assistant with a salary of ?18,000. The applicant was refused an employment permit because there was a sufficient supply of labour in Ireland to fill such a vacancy. Secondly, new employment permits were normally only granted for positions with a minimum salary of ?30,000. The High Court determined that the Minister for Jobs, Enterprise and Innovation had the power under s. 12 of the 2006 Act to refuse the application if it was inconsistent with the government?s economic policy.
Held by Hogan J.
The court considered whether the Minister was entitled to prescribe such a condition as a minimum salary by examining the proper construction of s. 12 and s. 14 of the 2006 Act and how they overlap. The High Court judge pointed out that the Minister had a duty to protect the labour market by considering categories of employment and remuneration levels. There was a conflict, overlap and inconsistency in the practical operation of s. 12 and s. 14 of the 2006 Act. Hogan J determined that the provisions should operate separately and independently. Hogan J said this could be achieved by reading s. 12 in a way that embraced matters of government policy other than minimum levels of remuneration.
The court concluded that the Minister did not have the power to require prospective employees to demonstrate a remuneration package over ?30,0000 in order for an employment permit to be granted. If a desire existed to stipulate a minimum remuneration threshold the Minister would have made the appropriate regulations to do so under s. 14. The Minister had acted ultra vires the relevant provisions of the 2006 Act. The appeal was allowed and the court granted an order quashing the Minister?s decision to refuse the applicant?s application for an employment permit.
This appeal from the decision of the High Court concerns the interpretation of a number of overlapping provisions of the Employment Permits Act 2006 (?the 2006 Act?). As will shortly be seen, the issues of statutory interpretation presented on this appeal are not straightforward.
The background to the present appeal is as follows: the applicant, Mr. Ali, seeks an order quashing the decision of the respondent Minister for Jobs, Enterprise and Innovation dated 13th May 2014 as refused to grant him an employment permit under the 2006 Act. The applicant contends that his application for a permit was refused by reference to criteria which, had the Minister wished to utilise them, could only have been specified by the means of a statutory instrument under s. 14(1)(d) of the 2006 Act and not, as was in fact done, by means of an administrative scheme.
The applicant is a Pakistani national who has been lawfully resident in the State as a student since August 2007. His student status entitles him to what is known as a stamp 2 visa which permits him to work during college term for a period of 20 hours per week and during vacation time, for 40 hours per week. Mr. Ali is married with one child and his wife and child reside in Pakistan. His stamp 2 visa does not permit them to enter the State and reside with him. If, on the other hand, Mr. Ali could secure an employment permit under the 2006 Act would entitle him to work for 40 hours a week throughout the year and, furthermore, to bring his wife and child to Ireland to reside with him.
On the 10th of April, 2014, Mr. Ali applied for an employment permit, having been offered a full-time position as sales support assistant with his employer at an annual salary of ?18,000. The application was refused by letter of the 13th of May, 2014 from the Minister. The letter stated as follows:
?I am directed by the Minister for Jobs, Enterprise and Innovation to refer to your application for an employment permit under the Employment Permits Act, 2006. I wish to inform you that the granting of a permit in this case is being refused under the Employment Permits Act, 2006. Reasons for refusal in this case are: The Employment Permits Acts 2003 and 2006 require the Minister, having regard to an application for an employment permit, to consider the extent to which a decision to grant the permit would be consistent with the government's economic policy and whether the granting of the permit would be in the public interest in terms of protecting the labour market. Current government policy promotes, in the first instance, employment growth through the filling of vacancies from the existing labour market especially in employments requiring lower skills levels as there is a sufficient supply of labour in the labour market currently.
Reasons for refusal in this case are: It appears from the information received that the position on offer is one of the occupations currently ineligible for an employment permit. Certain occupations are not deemed eligible for employment permits where it is considered that there is already a sufficient supply of labour in the labour market for the filling of such vacancies. This includes occupations for which an adequate supply of skilled labour exists or occupations which do not require high levels of skill and experience or which, therefore, can be filled by the existing supply of labour. Hence applications for ineligible positions are generally refused, as government policy promotes, in the first instance, the filling of vacancies from the existing labour market. It appears from the documentation submitted that the employee will not receive the minimum remuneration of ?30,000 per annum required and so does not meet the required criteria. The level of remuneration is a key indicator of the skills and experience required for a job and assists the Minister in determining the necessity for employing a foreign national. Therefore, in order to satisfy the Minister that the granting of an employment permit would be in the public interest and in line with the current economic policy of the Government and not contrary to Sections 12 (1) (d) and 12 (1) (f) of the 2006 Act, new employment permit applications are normally only considered where it is established that a minimum salary of ?30,000 per annum is on offer based on a 39 hour week and where the position is not one of those currently deemed ineligible. This government policy has been formed in view of the very high levels of unemployment currently pertaining in the Irish labour market and the availability of qualified Irish and EU workers to fill low skilled jobs.
I conclude therefore, that in light of the above and taking account of the current economic policy of the government that the grant of an employment permit would not be consistent with that economic policy. I am of the view that the grant of an employment permit in this case would not be in the public interest and would be contrary to s. 12 (1) (f) of the Employment Permits Act, 2006 and would be manifestly inconsistent with the economic policy of the government and therefore contrary to s. 12 (1) (d) of the Employment Permits Act 2006. The application is therefore refused for those reasons.?
Before considering in any detail the legal issues presented by this appeal, it is, however, necessary to set out in some details the relevant provisions of ss. 8, 11,12, 14 and 15 of the 2006 Act.
Section 8(1) of the 2006 Act provides:
?Subject to sections 10, 12 and 14 and section 2(11) of the Act of 2003, the Minister may, on application made to him or her, grant an employment permit??
Section 11 of the 2006 Act provides:
?(1) In considering an application for an employment permit, the Minister shall have regard to:-
(a) the extent to which a decision to grant the permit would be consistent with economic policy for the time being of the Government,
(b) whether the skills or qualifications specified to be required for the employment to which the application relates, that is to say, specified to be so required by:-
(i) the applicant, or
(ii) in the case of an application by a foreign national, the person who has made the offer referred to in section 4(3) to the foreign national, are necessary for, or relevant to, that employment,
(c) such of the other matters referred to in section 6 or, as the case may be, section 7 as are relevant to the application, and
(d) if any of paragraphs (a) to (j) of section 12(1) fall to be applied in relation to the application, any matters that, in the opinion of the Minister, are material to the application of such a paragraph or paragraphs.
(2) In considering an application for an employment permit, the Minister may take such steps as he or she considers necessary to establish the accuracy or authenticity of the information provided in respect of the application.
(3) This section is subject to the provisions of any regulations under section 14 that apply in relation to the application concerned.
(4) Accordingly, nothing in...
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...to consider the applicant's application. Counsel referred to the decision in Ali v. Minister for Jobs Enterprise and Innovation [2016] 1 I.L.R.M. 400, where the Minister had adopted a policy of refusing applications for employment permits unless the applicant had a salary in excess of €30,0......