Nisar Ali v Minister for Jobs, Enterprise and Innovation
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 15 April 2015 |
| Neutral Citation | [2015] IEHC 219 |
| Court | High Court |
| Docket Number | [No. 307 JR/2014] |
| Date | 15 April 2015 |
[2015] IEHC 219
THE HIGH COURT
BETWEEN:
AND
Employment – Order of certiorari – Declaratory reliefs – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether an employment permit should be granted to the applicant
Facts: The applicant, Mr Ali, has been lawfully resident in Ireland since August, 2007 as a student. He made three applications to the respondent, the Minister for Jobs, Enterprise and Innovation, for an employment permit, entitling him to work for 40 hours a week throughout the year and to bring his wife and child to Ireland to reside with him, pursuant to the provisions of the Employment Permits Act 2006, all of which were unsuccessful. All three refusals, including that of the 13th of May, 2014, were the subject of judicial review proceedings. The applicant sought an order of certiorari from the High Court quashing the 13th of May decision. The applicant further sought various ancillary declaratory reliefs, in particular relating to the operation by the respondent of a scheme comprising various criteria for the grant of employment permits. Relying upon O”Neill v Minister for Agriculture and Food [1998] 1 IR 539, the applicant submitted that the ‘rules’ adopted by the Minister are ultra vires the powers conferred on him by the 2006 Act; in adopting ad hoc rules which purport to deal with matters such as the categories of employment and minimum amount of remuneration to which regard will be had in assessing applications for employment permits, the Minister had in effect sought to entirely circumvent the provisions of s. 14 of the 2006 Act, which explicitly provides for the making of regulations in relation to such matters. The applicant further submitted that the adoption of those criteria by the Minister infringes Article 15.2.1 and 15.2.2 of the Constitution. The Minister argued that he had a clear discretion under the 2006 Act with regard to the issuing of employment permits and that it was perfectly permissible for the Minister to indicate in broad terms how that discretion will be exercised by the publication of appropriate criteria and guidelines for the benefit of the public. The Minister contended that, in having regard to economic policy as he is obliged to do in considering an application for an employment permit, he must be entitled to consider matters of the type referred to in s. 14 that may be the subject matter of regulations.
Held by Noonan J that that the 2006 Act could not in any sense be equated with the legislation in issue in O”Neill. Noonan J held that the 2006 Act clearly confers upon the Minister the power to grant employment permits whether or not regulations are made under s. 14; as such, in considering applications for employment permits under the 2006 Act, the Minister was obligated to have regard to the policy of the Government in relation to the protection of the labour market in considering whether to grant or refuse an employment permit. Relying upon Crawford (Inspector of Taxes) v Centime Ltd [2006] IR 106, Noonan J held that where a statutory discretionary power is conferred on a decision maker, it must be in the interests of those engaging with such decision maker to have access to information as to how that discretion is likely to be exercised in a particular set of circumstances. Noonan J held that the legislative and factual background against which O”Neill was decided was distinguishable. Noonan J did not believe that one could infer that the legislature intended that the Minister could not take account of the matters specified in s. 14 in assessing applications for employment permits in the absence of making regulations.
Noonan J held that he was satisfied that the applicant had not made out any of the grounds upon which leave was granted. Although the issue of alternative remedies was canvassed by the parties, in the light of Noonan J”s findings it was ruled unnecessary to determine that issue. Accordingly, Noonan J dismissed the application.
Application refused.
In the within proceedings, the applicant ("Mr. Ali") seeks an order ofcertiorari quashing the decision of the respondent of the 13th of May, 2014 refusing to grant an employment permit to the applicant. The applicant further seeks various ancillary declaratory reliefs, in particular relating to the operation by the respondent of a scheme comprising various criteria for the grant of employment permits.
The applicant has been lawfully resident in the state since August, 2007 as a student. His 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.
Three applications by or on behalf of Mr. Ali have been made to the respondent ("the Minister") for an employment permit pursuant to the provisions of the Employment Permits Act 2006 ("the Act"), all of which have been unsuccessful. All three refusals, including that of the 13th of May, 2014, the subject matter of these proceedings, have been the subject of judicial review proceedings. An employment permit, if granted to Mr. Ali, would entitle him to work for 40 hours a week throughout the year and further to bring his wife and child to Ireland to reside with him.
Since his arrival in the state, Mr. Ali has completed an MSc degree in computing and thereafter, he enrolled for a business degree at Eden College, Dublin. Unfortunately that college appears to have closed unexpectedly in April, 2014.
On or about 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 and Department, which stated as follows:
"I am directed by the Minister for Jobs, Enteiprise 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 Acts2003 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 consistentwith 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 anum 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 Sections12 (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 anum 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.
Should you wish this decision to be reviewedthe applicant may do so in accordance with s. 13 of the Employment Permits Act, 2006, within twenty one (21) days from the date of this letter. Any such submission, (addressed to the Appeals...
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Ali v Minister for Jobs, Enterprise and Innovation
...of which Mr. Ali made his application.? The decision of the High Court 14 In the High Court, Noonan J. delivered a reserved judgment ( [2015] IEHC 219) dismissing the application. He took the view that the powers conferred on the Minister under s. 12 of the 2006 Act to refuse to grant the ......