P v The Minister for Business, Enterprise, and Innovation
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] IEHC 609 |
| Court | High Court |
| Docket Number | [2020 No. 370 JR] |
[2021] IEHC 609
[2020 No. 370 JR]
THE HIGH COURT
General employment permit – Reasoning – Fettering of discretion – Applicant seeking to quash the review decision made by the respondent – Whether the respondent erred in law in fettering her discretion
Facts: The applicant, a third country national, sought a general employment permit so that he could take up a job as a head chef in Ireland. That application was followed by a decision and then by a review decision. The applicant applied to the High Court seeking to quash the review decision of 30th March 2020 made by the respondent, the Minister for Business, Enterprise and Innovation. The applicant, per his statement of grounds, claimed as follows in respect of the impugned review decision: “1. 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 Employment Permits Act 2006, as amended, to grant the Application for a General Employment Permit, notwithstanding the fact that the Applicant is in Ireland without a current immigration permission from the Minister for Justice and Equality”; “2. The Respondent erred in law and in fact and/or in a mixture of law and fact in failing to give any reasons or any adequate reasoning as to why she would not exercise her discretion pursuant to s. 12(1)(i) of the Employment Permits Act 2006, as amended, to grant the Applicant’s application for a critical skills permit”.
Held by Barrett J that the court considered the impugned decision to be thoroughly flawed in terms of the reasoning given. As to the fettering of discretion point, Barrett J held that the reasoning in the impugned decision was so flawed and wanting in substance that the court considered that it could not determine properly whether or not there had been a fettering of discretion, which pointed still further to just how inadequate the reasoning in the impugned decision was.
Barrett J granted the order of certiorari sought, quashed the impugned decision and remitted the matter to the respondent for fresh consideration. The court noted its initial view that the applicant, having succeeded completely in the application, was entitled to his costs.
Order of certiorari granted.
This is a successful challenge brought by Mr P, a third-country national, against a review decision made by the respondent refusing Mr P a general employment permit. This summary forms part of the court's judgment.
JUDGMENT of Mr Justice Max Barrett delivered on 30 th July 2021 .
. Mr P is a chef and a third country national who is currently present in Ireland. In the past he sought a general employment permit so that he could take up a job as a head chef here in Ireland. This application was followed by a decision and then by a review decision. The within application seeks to quash the review decision of 30 th March 2020.
. A brief summary chronology may assist the reader in understanding the judgment that follows:
01.08.2015. On or about this date, Mr P enters the State.
09.05.2016. Mr P makes an EUTR application to be treated as a permitted family member.
09.06.2016. Following on the EUTR application, Mr P is granted a temporary permission to remain.
05.01.2017. By decision of this date, the EUTR application is refused.
25.01.2017. Mr P seeks a review of the refusal of his EUTR application.
17.02.2018. A review decision issues affirming the initial EUTR refusal. By letter of the same date, the Minister proposes to deport Mr P.
03.05.2018. Mr P makes a fresh application to be treated as a permitted family member. (The court understands that this was because of a changed understanding of the applicable law following on certain case-law).
28.05.2018. Fresh EUTR application fails.
12.06.2018. Mr P seeks a review of the decision indicating the refusal of his fresh EUTR application. The court understands that it continues to be the case that this review has yet to be determined. It follows that Mr P did not at the time when this application was heard hold a current immigration permission to remain in the State.
02.08.2019. Mr P applies to the respondent for a general employment permit to allow him to take up a job as a head chef in a restaurant. As will be seen later below, this application was made on the express basis that the respondent was being asked to exercise his discretion to grant the application notwithstanding Mr P's then/current immigration status.
04.02.2020. Respondent refuses Mr P's application for a general employment permit.
19.02.2020. Mr P seeks a review of (commences an appeal against) the respondent's refusal to grant him a general employment permit.
30.03.2020. Respondent issues the review decision (this is the impugned decision) affirming the refusal of the general employment permit.
24.06.2020. Within application commenced.
27.07.2021. Within application heard.
. Mr P, per his statement of grounds, claims as follows in respect of the impugned review decision:
“ 1. 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 Employment Permits Act 2006, as amended, to grant the Application for a General Employment Permit, notwithstanding the fact that the Applicant is in Ireland without a current immigration permission from the Minister for Justice and Equality.
PARTICULARS OF ERROR
i. The Respondent, in her decision of the 30 th March 2020, refused the application on the following basis:
‘I am directed by the Minister for Business Enterprise and Innovation to refer to your submission requesting a review of the decision to refuse the granting of an employment permit under s.13 of the Employment Permits Act, as amended.
I understand the application was refused on the basis that it appears from the information submitted that the foreign national is in the State with current immigration permission from the Minister for Justice and Equality. In line with s.12(1)(i) of the Employment Permits Act 2006, as amended, it was not possible to issue an employment permit.
I have reviewed the information you have submitted in support of the request for a review and I am satisfied that having considered…the circumstances of the application that the decision to refuse and employment permit is the correct decision and I confirm that decision under s.13(4)(a) of the Employment Permits Act 2006, as amended.’
The fact that the Applicant was in the State without a current immigration permission was brought to the attention of the Respondent by the Applicant. Nowhere in the above rationale does the Respondent acknowledge that she had discretion to ignore her policy concerning the grant of employment permits to persons within the State. The policy is merely stated and the first instance decision affirmed on the basis of the policy as stated. In inflexibly adhering to the said policy and in failing to recognise that the Respondent is free to depart from that policy the Respondent fell into error in the manner in which she reached the impugned decision.
ii. Section 12(1) of the 2006 Act as amended provides ‘(1) The Minister may refuse to grant an employment permit if – …’. It is clear from the foregoing that the Respondent is not required to refuse an application under s.12 but may choose to do or not to do so. The Respondent may but it is not obliged to refuse an application for an employment permit where the Applicant is in the State without a current immigration permission and in circumstances where the application was made on the basis that the Respondent was being asked to exercise this discretion the Respondent fell into error in unlawfully fettering that discretion and/or failing to recognise that she had a discretion to exercise in arriving at the impugned decision.
2. The Respondent erred in law and in fact and/or in a mixture of law and fact in failing to give any reasons or any adequate reasoning as to why she would not exercise her discretion pursuant to s.12(1)(i) of the Employment Permits Act 2006, as amended, to grant the Applicant's application for a critical skills permit.
PARTICULARS OF ERROR
i. The Respondent in her decision of the 30 th of March 2020, did not mention the existence of her power pursuant to s.12(1)(i) of the 2006 Act to grant an application notwithstanding that an Applicant is in the State without a valid immigration permission nor did the Respondent give any or adequate reasons why she would not exercise the said discretion in the case at bar and in so doing the Respondent fell into error.
ii. The Application was made on the basis that the Respondent ought to exercise his discretion to grant the employment permit sought notwithstanding the fact that the Applicant did not have a current immigration permission, therefore by failing to give reasons for the exercise or refusal to exercise that discretion the Respondent fell into error.”
. Exhibited among the documentation before the court is the original, detailed application, which included, for example, a contract of employment, personal details and references, etc. Mr P avers in his affidavit that this application documentation was followed up within a couple of weeks by a letter from his solicitor arising from the particular circumstances that presented by virtue of his not having an immigration permission; a copy of this document (a letter of 16 th August 2019 from Abbey Law Solicitors to the Department of Business, Enterprise and Innovation) has been exhibited in these proceedings. Although this document highlighted that Mr P did not have an immigration permission, it also set out the particular circumstances presenting which Abbey Law was asking the respondent to take account of in this regard. The...
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