MD Yeasin v The Minister for Business, Enterprise and Innovation

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 13 December 2021
• Neutral Citation: [2021] IEHC 821
• Court: High Court
• Docket Number: [2019 No. 541 JR]

In the Matter of the Employment Permits Act, 2006 (As Amended)

Between

MD Yeasin

Applicant

and

The Minister for Business, Enterprise and Innovation

Respondent

[2021] IEHC 821

[2019 No. 541 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Critical Skills Employment Permit – Remittal – Applicant seeking an order of certiorari of the respondent’s decision to refuse the applicant’s application for a Critical Skills Employment Permit – Whether the respondent erred in law in unlawfully fettering her discretion

Facts: The applicant, Mr Yeasin, by order of the High Court, 29 July 2019 (Noonan J), was granted leave to seek the following reliefs: (i) an order of certiorari of the decision of the respondent, the Minister for Business, Enterprise and Innovation, of 1 July 2019, received by the applicant on 3 July 2019, to refuse the applicant’s application for a Critical Skills Employment Permit pursuant to s. 12(1)(i) of the Employment Permits Act 2006 as amended; and (ii) an order remitting the impugned decision of the respondent back for reconsideration by a different officer of the respondent. In the applicant’s Statement of Grounds, it was maintained that the respondent erred in law in unlawfully fettering her discretion and/or failing to recognise that she had a discretion to exercise pursuant to s. 12(1)(i) of the 2006 Act, notwithstanding the fact that the applicant was in the State without a current immigration permission from the Minister for Justice and Equality. In her Statement of Opposition, the respondent maintained that she did exercise her discretion, and that she did so correctly.

Held by Meenan J that, notwithstanding that the foreign national concerned was unlawfully in the State, the respondent may still grant an employment permit. Meenan J held that the wording of the impugned decision that “it was not possible to issue an employment permit” where the applicant was unlawfully in the State seemed to indicate that the respondent had no discretion in the matter. It seemed to Meenan J that the wording of the impugned decision, namely “it was not possible”, has effectively the same meaning as the words “cannot be issued”. Meenan J held that both are inconsistent with the respondent having the discretion which is clearly provided for in the Statute. As Meenan J had reached the conclusion that the provision of s. 12(1) of the 2006 Act was incorrectly applied by the respondent, he did not believe that the issue of “lack of reasons” applied.

Meenan J held that the applicant was entitled to an order of certiorari in terms of para. 1 of the Notice of Motion. Further, Meenan J held that he would remit the impugned decision of the respondent back for reconsideration by a different officer of the respondent. Meenan J’s initial view was that as the applicant had been wholly successful in the proceedings he was entitled to his costs (including reserved costs) to be adjudicated in default of agreement, as per s. 169 of the Legal Services Regulation Act 2015.

Reliefs granted.

JUDGMENT of Mr. Justice Meenan delivered on the 13 ^th day of December, 2021

Background

1 . The applicant was born in the Peoples Republic of Bangladesh on 3 July 1984. He entered the State on a student visa, which was issued by the Minister for Justice and Equality on or about 23 February 2007. The student visa permission was renewed from time to time and remained valid until the applicant was granted a residence card as a qualifying family member of his EU citizen spouse. The applicant had married a Hungarian national on 14 November 2014. The applicant applied for, and was granted, a residence card on foot of his said marriage on 20 May 2015.

2 . In or around 2018, unhappy differences arose in his marriage which caused the relationship to irretrievably break down and his wife returned to Hungary permanently. Arising from the breakdown of his marriage, the applicant instructed his then solicitors to write, by way of letter of 7 June 2018, to the Minister for Justice and Equality seeking a change in his immigration status to allow him to continue to reside in the State. This application was refused by letter dated 8 November 2018.

3 . By a decision of letter dated 12 December 2018, but received by his then solicitors on 14 December 2018, the Minister for Justice and Equality revoked the applicant's residence card on the basis, inter alia, that his marriage was one of convenience. However, prior to the said revocation of residence, the applicant had directed his then solicitors to submit an application for a Critical Skills Employment Permit to allow him to take up a job offer to work as an accountant. Since the applicant had arrived in the State, he qualified as a Chartered Accountant and was employed in that capacity. This application was submitted to the respondent on 14 December 2018, prior to the receipt of the said aforementioned revocation decision by the Minister for Justice and Equality.

4 . Once the applicant became aware of the said revocation decision, he directed his solicitors to write to the respondent, by letter dated 18 December 2018, setting out his immigration history and status in the State and asking the respondent to exercise her discretion to grant the application for a Critical Skills Employment Permit, notwithstanding the fact that the applicant did not have a current immigration permission to reside in the State. This letter stated, inter alia:-

“We are aware that the usual policy is to refuse an application made by a person who is the State without a permission, on the basis of Section 12(1)(i) of the Employment Permits Act 2006 as amended (“the Act”). However, the Minister is empowered under the Act to waive this policy in appropriate circumstances. In this regard we refer to the recent decision of Mr. Justice Noonan in Ling & Yip Ltd v The Minister for Business, Enterprise and Innovation which stated:

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We submit that the facts of this case are such that the Minister's discretion should be exercised to grant this permit.”

Decision of the respondent

5 . The respondent refused the application, by letter dated 8 March 2018, on the basis, inter alia, that the applicant did not have a current immigration permission from the Minister for Justice and Equality to reside in the State pursuant to s. 12(1)(i) of the Employment Permits Act 2006 (as amended) (“the Act of 2006”). On 21 March 2019, this decision was appealed by the applicant.

6 . By letter, dated 1 July 2019, the respondent refused the applicant's request for a review/appeal of the...