MD Liton Hossain v The Minister for Business Enterprise and Innovation

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 03 March 2021
• Neutral Citation: [2021] IEHC 152
• Docket Number: [Record No. 2020/494 JR]
• Court: High Court
• Date: 03 March 2021

Between

MD Liton Hossain

Applicant

and

The Minister for Business Enterprise and Innovation

Respondent

[2021] IEHC 152

[Record No. 2020/494 JR]

THE HIGH COURT

Judicial review – Declaratory relief – Employment permit – Applicant seeking an order of certiorari in respect of the decision of the respondent – Whether the applicant was precluded from applying for or receiving an employment permit by sole reason of his possession of a Stamp 4 immigration permission to reside within the State

Facts: The applicant, Mr Hossain, a national of Bangladesh, was married to a UK citizen in England and they came to Ireland in November 2015. The applicant was issued with a Stamp 4 immigration permission on the basis that he was married to an EU citizen who was exercising her right to free movement within the EU. The marriage broke down and the applicant’s wife returned to the UK. His Stamp 4 permission was due to expire on 2nd November, 2021. The applicant applied for an employment permit from the respondent, the Minister for Business Enterprise and Innovation, pursuant to the Employment Permits Acts 2003-2020. His application was refused by the respondent on the basis that the Minister had no jurisdiction to grant an employment permit as the applicant already had a right to work by virtue of holding a valid Stamp 4 permission. The applicant brought proceedings. The central issue that arose for determination was whether the fact that the applicant was the holder of a Stamp 4 permission, which permitted him to work without the need to hold an employment permit, was therefore excluded from the category of persons who can apply for and be granted an employment permit. It was submitted on behalf of the applicant that, while that would ordinarily be the case, in the particular circumstances of the applicant’s case, where it was clear that a Stamp 4 permission was likely to be revoked imminently, or at the very latest, would expire on 2nd November, 2021, it was reasonable that he should seek to protect himself and his employer from falling into the trap that he may be working without a valid legal authority to do so, by obtaining an employment permit that would cover him if and when his Stamp 4 permission was revoked or lapses. It was submitted that there was no provision in the legislation which prevented the respondent from issuing an employment permit in such circumstances.

Held by the High Court (Barr J) that the Minister was not precluded from considering the applicant’s application for an employment permit due solely to the fact that he was the holder of a Stamp 4 permission. The court was satisfied that the Minister was in error in concluding that the provisions of s. 2(10)(d) of the Employment Permits Act 2003 (as amended) precluded a consideration of the applicant’s application.

Barr J proposed making the following order: (a) an order of certiorari in respect of the decision of the respondent communicated on 20th April, 2020; (b) a declaration that the applicant is not precluded from applying for, or receiving an employment permit by sole reason of his possession of a Stamp 4 permission to reside within the State; (c) an order remitting the application back to the deciding officer to be decided in accordance with the terms of this judgment; (d) an order for costs in favour of the applicant, such costs to be adjudicated upon in default of agreement; (e) a stay on the order and on the order for costs for a period of 28 days and if a notice of appeal is lodged within the period of 28 days from perfection of the order, the stay is to continue until the final determination of the matter before the Court of Appeal.

Relief granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 3rd day of March 2021

1. Introduction

1 The central issue in these proceedings can be summarised in the following way: The applicant is a national of Bangladesh. He was married to a UK citizen in England and they came to Ireland in November 2015. The applicant was issued with what is known as a Stamp 4 immigration permission on the basis that he was married to an EU citizen who was exercising her right to free movement within the EU. The marriage broke down and the applicant's wife returned to the UK. His Stamp 4 permission is due to expire on 2nd November, 2021.

2 The applicant applied for an employment permit from the respondent pursuant to the Employment Permits Acts 2003–2020. His application was refused by the respondent on the basis that the Minister had no jurisdiction to grant an employment permit as the applicant already had a right to work by virtue of holding a valid Stamp 4 permission.

3 The essential question therefore is whether the respondent is correct in his contention that he cannot issue an employment permit to a person who already has a right to work in the State by virtue of the immigration permission held by them; in particular, the fact that they are the holder of a current Stamp 4 permission.

2. Background

4 The facts in this case are not in dispute. The following are the relevant dates for the purposes of this application:-

The decision went on to state that having reviewed the documentation submitted in support of the request for a review and having considered all the circumstances of the application, he was satisfied that the decision to refuse an employment permit was the correct decision. Mr. Kavanagh also stated: “ Please note that persons residing in the state must be legally resident and have an up-to-date immigration permission at the date of application from the Minister for Justice and Equality in order to be in or to enter employment. These persons must at the date of the application have a valid certificate of registration (GNIB card/IRP card) namely, holders of Stamps 1, 1A, 2, 2A and 3 immigration permissions.” The letter went on to advise the applicant that he should contact the Department of Justice and Equality and apply for Stamp 1 permission. Once received the respondent could process his application for a new general employment permit. Such an application should comply with the legislative requirements for the particular employment permit type.

31/5/2013	Applicant is married to a UK citizen in London.
November 2015	Applicant and his wife come to Ireland.
2/11/2016	Applicant is granted a Stamp 4 permission to be in the country on the basis that he is married to an EU citizen who is exercising her right to free movement within the EU.
February 2017	The applicant's marriage breaks down.
September 2017	The applicant's wife returns to the UK. She has since filed for divorce before the courts in England and Wales.
October 2019	The applicant informs the Irish Naturalisation and Immigration Service of his change in circumstances.
25/11/2019	Applicant applies for an employment permit. At para. 16 of the application form, the applicant stated “ Applicant is currently on Stamp 4 EU Fam, however his EU citizen spouse has left the jurisdiction and accordingly he has no entitlement to this permission going forward, though same remains valid. He has updated the EU Treaty Rights Unit in this regard.”
February 2020	The applicant is offered a further contract by his employer, which is the owner of a hotel in Kilkenny, to work as Chef de Partie for a period of two years commencing on 22nd February, 2020.
28/2/2020	A decision on the applicant's application is issued by Ms. Lynch. This is said to have been issued in error and gives an erroneous reason for the refusal of the application.
2/3/2020	A second decision is issued by Ms. Lynch, which also refuses the applicant's application for an employment permit. The reason given is: “It appears from the information submitted that the foreign national is the current holder of a Stamp 4 from the Minister for Justice and Equality which allows him to work without the requirement for an employment permit. In these circumstances an employment permit cannot be issued in this case.”
23/3/2020	The applicant, through his solicitor, submits a request for a review of the decision further to s.13 of the Employment Permits Act 2006 (as amended). In that letter, the applicant's solicitor points out that, while the applicant was the holder of a Stamp 4 permission, that permission was likely to be cancelled or withdrawn imminently due to the change in his marital circumstances. It stated that his circumstances therefore made it necessary for him to hold an employment permit. It stated that the applicant did not want to run the risk of a gap in permission which would result in his being present in Ireland without permission from the Minister for Justice and Equality. Nor did he wish to run the risk of becoming unemployed due to a temporary gap in permission. The letter further stated that the applicant was willing to formally surrender his Stamp 4 permission in the event that he was granted an employment permit.
20/4/2020	A decision on the review was given by the reviewing officer, Mr. Dermot Kavanagh. He upheld the decision made by Ms. Lynch on 2nd March, 2020. The reason for his decision was stated as follows: “I understand the application was refused on the basis that it appears from the information submitted that the foreign national is the current holder of a Stamp 4 from the Minister for Justice and Equality which allows him to work without the requirement for an employment permit. In these circumstances it was not possible to issue an employment permit”.

27/7/2020	The applicant obtained leave from the High Court to challenge the review decision dated 20th April, 2020.
[Date unknown]	In the applicant's written submissions it is stated that since the commencement of the proceedings, the applicant's apprehensions have been realised, as he has been served with correspondence from INIS indicating their proposal that the applicant's...