Sobhy v The Chief Appeals Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 11 January 2021
• Neutral Citation: [2021] IEHC 93
• Docket Number: [Record No. 2020 / 353 JR]
• Court: High Court
• Date: 11 January 2021

IN THE MATTER OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

SHARDHA SOBHY

PLAINTIFF

AND

THE CHIEF APPEALS OFFICER, MINISTER FOR EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

[2021] IEHC 93

Heslin

[Record No. 2020 / 353 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Heslin delivered on 11th day of January, 2021

Introduction

1 It is not in dispute that, pursuant to s. 300 (2) (iv) of the Social Welfare Consolidation Act, 2005, a deciding officer is entitled to decide on a question as to whether an employment is or was “ insurable employment” for the purposes of that Act. In the present case, the applicant seeks judicial review of a decision of 05 March 2020 whereby the first named respondent determined that the applicant's employment was not “ insurable” employment for the purposes of an entitlement to maternity benefit. In circumstance where the applicant was not the holder of a valid Garda National Immigration Card (GNIB) or work permit while working in Ireland during a certain period of years, during which she made PRSI contributions, the first named respondent took the view that such employment is not considered to be legally valid and any PRSI contributions made from this employment are also not considered to be valid. Thus, the first named respondent decided that the applicant could not satisfy the contribution criteria associated with the relevant scheme to qualify for maternity benefit. The first named respondent took the view that, where a non-EU national is employed without a valid work permit, such employment is not legal and, therefore, the employment will not be insurable. Relying on a 1995 decision by the Supreme Court, in FAS v. Abbot, ( Unreported, 23 May 1995), the first named respondent decided that a contract of employment which contravenes work permit legislation is an illegal contract of employment and, therefore, does not come within the definition of a “ contract of service” for the purposes of the Social Welfare Consolidation Act 2005, as amended and, thus, is not insurable employment for the purposes of the 2005 Act. It is this decision that the applicant challenges.

A summary of relevant facts

2 The applicant is a citizen of Mauritius. She arrived in Ireland on 05 March 2008 and registered with the Garda National Immigration Bureau (“GNIB”).

Lawfully in the State from 2008 - 2012

3 The applicant was lawfully in this State until 26 June 2012, having been granted five consecutive “Stamp 2” permissions to reside during the following periods: -

03 June 2008 to 10 March 2009;

19 May 2009 to 31 January 2010;

10 May 2010 to 10 August 2010;

17 August 2010 to 30 April 2011; and,

30 June 2011 to 26 June 2012.

21 November 2011 letter from the applicant seeking “Stamp 4”

4 In a letter dated 21 November 2011, addressed to the Irish Naturalisation and Immigration Service (“INIS”) of the Department of Justice and Equality, the applicant wrote as follows: -

“Dear Sir/Madam,

I, Mrs. Shardha Mooruth, living in Republic of Ireland since March 2008. I am a citizen of Mauritius, married to Mr. Thirag Mooruth (but separate for 5 years). I have 2 children living in Mauritius. I am a student here bearing the GNIB No. 403279. I have a part – time job here. I do not have any complaints at work, or have committed any offence against the law of Ireland or in Mauritius. I would like to make a request to general immigration section for a Stamp 4. Please do not hesitate to contact me … if you need any further information.

Kind regards”.

11 May 2012 letter to the applicant refusing application for Stamp 4

5 By letter dated 11 May 2012, the foregoing application to change from Stamp 2 to Stamp 4 status was refused and the INIS letter noted that the applicant currently had permission to remain in the State on Stamp 2 conditions until 26 June 2012. The letter concluded by stating that: -

“The onus remains on you to keep your permission to remain in the State up to date at all times”.

20 July 2016 letter from the applicant

6 In a letter received on 20 July 2016, the applicant again sought to change her immigration status, stating, inter alia, the following: -

“I am writing to you in relation to my visa. For the time being my visa has expired. I came to Ireland on the 5th March 2008. Ever since, I've been working and contributing towards Irish economy. I have been paying my PAYE and PRSI taxes on regular basis. I was expecting a new law to be out for the undocumented in this country but unfortunately this has not happened to date yet. I am living in this country for the past nine years and I highly consider Ireland as my home country. I would like to continue living in this country with all my paperwork in order. Sir/Madam, it would be highly appreciated and I would be very grateful if you can grant me my visa extension so that I could stay in this country legally. I apologise for any and all inconvenience as I had and I have no intention to remain in the country without a visa. It was my situation who forced me to do so. You will find photocopy of my P60, P21 and all my visa stamps since I entered the country. I look forward to your reply.

Regards”.

05 August 2016 letter to the applicant

7 By letter dated 05 August 2016, the foregoing application was refused in a letter from the Residents Division of the INIS which stated inter alia: -

“Because you did not have permission when the application was received, the question of amending or extending it does not arise. Accordingly, your case will not be dealt with under s. 4 of the 2004 Immigration Act”.

The said letter concluded with the following paragraph: -

“Please be informed that it is illegal under the Immigration Act 2004 to reside in the State without permission from the Minister for Justice and Equality. A person found guilty of such an offence is liable, under s. 13 of the Act of 2004, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding twelve months, or both. As you do not have current immigration permission you are not entitled to work”.

23 November 2016 letter from applicant's solicitors

8 By letter dated 23 November 2016 a firm of solicitors who were then representing the applicant, wrote to the Residents Division of the INIS requesting a review of the decision communicated in the letter from the INIS dated 05 August 2016. Among other things, the 23 November 2016 letter submitted that the applicant completed only four years on student conditions in the State. The letter also referred, inter alia, to a report entitled “New immigration regime for full-time non-EEA students: final report and recommendations of the interdepartmental committee” as well as to “Guidelines for non-EEA national students registered in Ireland before 1 January 2011”. The said letter concluded with the following: -

“Nothing in either the Report nor the Guidelines specifically addresses the situation of persons who became undocumented after completing less than the maximum time allowed on student conditions. We therefore respectfully submit that your decision was flawed, and request a review of same”.

9 At this juncture it is appropriate to point out that it is unknown whether a response was ever provided to this 23 November 2016 letter and nothing turns on any absence of any response for the purposes of the decision which this Court has to make.

October 2018 Scheme

10 In or about October 2018 the Minister for Justice launched a scheme to allow certain non-EEA nationals, who held a valid student permission during the period 01 January 2005 to 31 December 2010 and who had not in the intervening period acquired an alternative immigration permission, to apply for permission to remain in the State. The applicant applied under the said Scheme.

26 February 2019 letter granting temporary permission to reside on “Stamp 4S”

11 On 26 February 2019 the INIS wrote to the applicant, referring to her application which was made under the Special Scheme for Students from 01 January 2005 to 31 December 2010. The said letter informed the applicant that the Minister for Justice and Equality had decided to grant her temporary permission to reside on Stamp 4S conditions for a period of two years from the date of the letter. The permission granted as of 26 February 2019 was on the basis of conditions set out in the said letter including the requirement that the applicant register with her local Immigration Officer as soon as possible. It is not pleaded in the case before this Court that the applicant has breached any of the conditions in respect of the Stamp 4S permission granted with effect from 26 February 2019. The applicant's passport shows her Stamp 4S, the applicant having attended at Kildare Garda Station. It is not in dispute that the applicant has been lawfully residing in this State from 26 February 2019 onwards and that the applicant is permitted to reside in the State up to 26 February 2021.

The applicant's employment – 2008 to 2019

12 It is not in dispute that, between 2008 and 2019, at a time when the applicant did not have permission to reside or work in the State, she engaged in paid employment. Among the documents exhibited by the applicant is a “P60 Certificate of pay, tax, Pay Related Social Insurance, Universal Social Charge and Local Property Tax year ended 31 December. 2018” naming her as the employee and naming her employer as “Cross Retail Supervalu Ltd.” Among other things, this P60 specifies the applicant's PPS number and details inter alia, total pay, tax, USC and “PRSI in this employment”, identifying both the “employee's PRSI” as well as “Total (employer plus employee) PRSI”. The P60 certificate concludes with the following words: -

“TO THE EMPLOYEE - This is a valuable document.

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