Rodriguez v The Minister for Business, Enterprise and Innovation

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Heslin
Judgment Date25 March 2020
Neutral Citation[2020] IEHC 174
Docket Number[2019 No. 542 J.R.]
Date25 March 2020

[2020] IEHC 174

THE HIGH COURT

JUDICIAL REVIEW

Heslin J.

[2019 No. 542 J.R.]

BETWEEN
JULIA OLIVERA RODRIGUEZ
APPLICANT
AND
THE MINISTER FOR BUSINESS, ENTERPRISE AND INNOVATION
RESPONDENT

Judicial review – Employment permit – Statutory review – Applicant seeking to quash a decision by the respondent to refuse her an employment permit – Whether the respondent erred in law

Facts: The applicant, Ms Rodriguez, a Venezuelan national who holds a BSc. Degree in public accounting which she obtained in Venezuela and a certificate in business accounting which she obtained in Ireland through CIMA (Chartered Institute of Management Accountants) and which she obtained in May 2018, applied to the High Court to quash a decision by the respondent, the Minister for Business, Enterprise and Innovation, dated 15th July, 2019 to refuse her an Employment Permit arising out of an application for same which was made on behalf of the applicant on 20th November, 2018 in respect of the position of “Trainee Accountant”. A decision to refuse the 20th November, 2018 application was made by the respondent on 26th February, 2019. A statutory review was requested and the review decision, dated 15th July, 2019, was to refuse the application. It was the latter decision which the applicant challenged. By order made 29th July, 2019 (Noonan J) the applicant was granted leave to seek judicial review in respect of the following reliefs set out at para. D of her statement of grounds: “1. An order of certiorari quashing the decision of the respondent of 15 July, 2019 refusing to grant the applicant an employment permit; 2. A declaration that the respondent erred in law in the decision of 15 July, 2019 in refusing to grant the applicant an employment permit on the basis that the position of employment (Trainee Accountant) was on the list of ineligible categories of employment referred to in reg. 29(1), and specified in Schedule 4, of the Employment Permits Regulations, 2017 (S. 1. No. 95 of 2017), specifically Soc Code 4122, in the premises that Trainee Accountant is not included or categorised under Soc Code 4122, being properly categorised within Soc Code 2421; 3.A declaration that the respondent erred in law and/or breached the applicant’s right to fair procedures and natural and constitutional justice in the decision of 15 July, 2019 refusing to grant the applicant an employment permit on the erroneous basis that the position of Trainee Accountant was categorised under Soc Code 4122, instead of 2421, in the premises that the respondent had regard to factors which ought not properly have been included in the consideration and failed to have regard to factors which should properly have been considered; 4. An order pursuant to O. 84, r. 27 (4) of the Rules of the Superior Courts, remitting the matter to the respondent with a direction to reconsider it and reach a decision in accordance with the findings of this honourable court; 5. Further or other order; 6. Liberty to apply; 7. Costs.”

Held by Heslin J that the respondent did not err in law in the decision of 15th July, 2019. He was satisfied that the respondent did not have regard to factors which ought not properly have been included in the consideration undertaken by the respondent or that the respondent failed to have regard to factors which should properly have been considered. He was satisfied that the facts, as found from an examination of the evidence before the Court, did not support the case the applicant had sought to make out. He was also satisfied that there was no legal basis to ground the application.

Heslin J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Heslin delivered on the 25th day of March 2020
Background
1

The applicant is a Venezuelan national who holds a BSc. Degree in public accounting which she obtained in Venezuela and a certificate in business accounting which she obtained in Ireland through CIMA (Chartered Institute of Management Accountants) and which she obtained in May 2018. The applicant seeks to quash a decision by the respondent, dated 15th July, 2019 to refuse her an Employment Permit arising out of an application for same which was made on behalf of the applicant on 20th November, 2018 in respect of the position of “Trainee Accountant”. A decision to refuse the 20th November, 2018 application was made by the respondent on 26th February, 2019. A statutory review was requested and the review decision, dated 15th July, 2019, was to refuse the application. It is the latter decision which the applicant challenges.

Relief sought
2

By order made 29th July, 2019 (Noonan J.) the applicant was granted leave to seek judicial review in respect of the reliefs set out at para. D of her statement of grounds and on the basis of the grounds set out at para. E. The following is the relief sought at para. D in the statement of grounds:

“1. An order of certiorari quashing the decision of the respondent of 15 July, 2019 refusing to grant the applicant an employment permit;

2. A declaration that the respondent erred in law in the decision of 15 July, 2019 in refusing to grant the applicant an employment permit on the basis that the position of employment (Trainee Accountant) was on the list of ineligible categories of employment referred to in reg. 29(1), and specified in Schedule 4, of the Employment Permits Regulations, 2017 (S. 1. No. 95 of 2017), specifically Soc Code 4122, in the premises that Trainee Accountant is not included or categorised under Soc Code 4122, being properly categorised within Soc Code 2421;

3. A declaration that the respondent erred in law and/or breached the applicant's right to fair procedures and natural and constitutional justice in the decision of 15 July, 2019 refusing to grant the applicant an employment permit on the erroneous basis that the position of Trainee Accountant was categorised under Soc Code 4122, instead of 2421, in the premises that the respondent had regard to factors which ought not properly have been included in the consideration and failed to have regard to factors which should properly have been considered;

4. An order pursuant to O. 84, r. 27 (4) of the Rules of the Superior Courts, remitting the matter to the respondent with a direction to reconsider it and reach a decision in accordance with the findings of this honourable court;

5. Further or other order;

6. Liberty to apply;

7. Costs.”

Grounds upon which the relief is sought
3

The following are the grounds upon which the applicant seeks relief, as appears from para. E of the statement of grounds:

“1. The applicant is a Venezuelan national, who was lawfully resident on a stamp [2] at the time of the application for an employment permit – made on 20 November, 2018 by her employer, in respect of the position of trainee accountant. Her status subsequently lapsed. The first instance decision was made on 26 February, 2019. The impugned review decision, made on 15 July, 2019, set out the basis of refusal in the first instance decision and upheld that decision on the basis that: ‘it is considered that the occupation of trainee accountant is included under Soc Code 4122’;

2. The Employment Permits Regulations, 2017 (S.I. No. 95 of 2017) utilises the Standard Occupational Classification system (Soc 2010). Code 4122, in Schedule 4 of the Regulations of 2017, covers ‘book-keepers, payroll managers and wage clerks’. Trainee accountants are not referred to;

3. Further, under Soc 2010, trainee accountants are coded to the relevant occupation or profession for which they are in training – this is confirmed in the Soc 2010 volume 2: the structure and coding index: ‘job titles prefixed by words which indicate a position in a hierarchy, for example, ‘apprentice’, ‘assistant’, ‘chief’, ‘departmental’, ‘deputy’, ‘head’, ‘principal’, ‘trainee’, ‘under’, are normally coded as though the prefix words were not present. Therefore, the position of trainee accountant is properly categorised under 2421. The UK body (Office for National Statistics) responsible for classifications and enquiries under the Soc 2010 have confirmed this categorisation/coding, stating that: ‘all persons in training for an occupation or profession are coded to the relevant occupation or profession for which they are in training. Therefore, based on the information provided we would advise Soc 2010 Unit Group 2421.’;

4. Consequently, the respondent has erred in law and/or had regard to factors which ought not properly have been included in the consideration and failed to have regard to factors which should properly have been considered;

5. The applicants reserve the right to advance any further arguments that this honourable court so permits.”

The Employment Permits Acts, 2006-2014
4

The preamble to the Employment Permits Act, 2006 states:

“AN ACT TO PROVIDE FOR THE GRANT OF EMPLOYMENT PERMITS TO CERTAIN FOREIGN NATIONALS FOR THE PURPOSE OF PERMITTING THEM TO BE IN EMPLOYMENT IN THE STATE, TO ENABLE THE MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT TO MAKE, HAVING HAD REGARD TO CERTAIN CRITERIA, REGULATIONS IMPOSING A LIMIT ON THE NUMBER OF SUCH PERMITS THAT MAY BE GRANTED IN A PARTICULAR PERIOD AND IMPOSING CERTAIN OTHER RESTRICTIONS WITH REGARD TO THE GRANT OF SUCH PERMITS, TO OTHERWISE REGULATE THE EMPLOYMENT OF CERTAIN FOREIGN NATIONALS IN THE STATE AND PROVIDE CERTAIN PROTECTIONS FOR FOREIGN NATIONALS IN EMPLOYMENT IN THE STATE, TO AMEND THE EMPLOYMENT PERMITS ACT 2003 AND TO PROVIDE FOR RELATED MATTERS.”

5

Section 14 of the Employment Permits Act, 2006, as amended (hereinafter “the 2006 Act”) deals with regulations governing the grant of permits etc and specifies the following:

14(1) The Minister may, having regard to sections 3A and 14A and the matters specified in section 15, make regulations providing for a class of employment permit for each purpose specified in paragraphs (a)...

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