Yoon v Minister for Enterprise, Trade and Employment

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barry O'Donnell
• Judgment Date: 18 September 2024
• Neutral Citation: [2024] IEHC 548
• Docket Number: [2023/122JR]

Between:

Haeseo Yoon

Applicant

and

The Minister for Enterprise, Trade and Employment

Respondent

[2024] IEHC 548

[2023/122JR]

THE HIGH COURT

JUDICIAL REVIEW

Challenege to decision of officer of the Minister - failure to recongnise discretion - matter remitted

Facts: The application sought, by way of judicial proceedings, to challenge a decision made by an officer of the respondent pursuant to the provision of the Employment Permits Act 2006. as amended,, and regulation make pursuant to that legislation. The applicant submitted two main arguments and an additional submission; (i) the officer acting for the respondent fettered her discretion or failed to recognise her discretion, by not engaging properly with the substance of the reasons why the applicant said she was entitled to the permit; (ii) the officer erred by not providing adequate reasons for the decision; (iii) the decision was unreasonable. The Judge made an order quashing the respondent's decision which refused the application on the initial refusal of the permit and remitted the matter to a different officer for reconsideration

Matter remitted to court

Judgment of Mr. Justice Barry O'Donnell delivered on the 18 ^th day of September 2024 .

INTRODUCTION

1 . In these judicial review proceedings, the applicant seeks to challenge a decision made by an officer of the respondent pursuant to the provisions of the Employment Permits Act 2006, as amended, and regulations made pursuant to that legislation. In the decision, an earlier initial refusal of a general employment permit to work as a tattoo artist was reviewed, and the refusal upheld.

2 . The applicant made two main arguments. First, that the officer acting for the respondent fettered her discretion, or failed to recognise her discretion, by not engaging properly with the substance of the reasons why the applicant said she was entitled to the permit. Second, it was argued that the officer erred by not providing adequate reasons for the decision. A third ground was argued, albeit with an acceptance that it was not the strongest point, that the decision was unreasonable.

3 . For the reasons set out in this judgment the court has concluded that the applicant is entitled to relief sought.

LEGISLATIVE BACKGROUND

4 . At the hearing of the application, the parties were in agreement that the core issues concerned the operation of s.12(3) of the Employment Permits Act 2006, as amended ( the 2006 Act) and S.I. 95 of 2017, the Employment Permits Regulations 2017 ( the 2017 Regulations).

5 . The underlying legislative scheme is reasonably detailed, and some aspects of that scheme ought to be set out in order to contextualise and explain the task that the respondent's officer was required to carry out. It should be noted that the applicant is a citizen of the Republic of Korea, and this is not a case involving skills or occupations that have been identified by the government as necessary for the labour market.

6 . Section 2 of the 2006 Act amends s.2 of the Employment Permits Act 2003 by substituting subsections which make it clear that a foreign national is not entitled to enter employment or to be employed in the State, except “ in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”

7 . The overall purposes for which employment permits may be granted are set out in s.3(A) of the 2006 Act. In broad terms, the purposes are to ensure that appropriately skilled foreign nationals can be employed where their skills are required for certain identified sectors where it is not possible to recruit appropriately skilled persons or where there is a shortage of such workers.

8 . Section 8(1) provides the Minister with a discretion to grant an employment permit. The manner in which that discretion is to be exercised and the factors to be considered are set out in detail at various points in the legislation. In addition to setting out the criteria to be considered in deciding whether an employment permit should be granted and the process by which such an application must be made, the 2006 Act expresses the legislative intention that there are situations where an employment permit must not be granted.

9 . According to s.12(3), the Minister must refuse to grant an employment permit if the granting of it would contravene regulations made under s.14 of the 2006 Act. If such a refusal is made, the Minister is required to notify, in writing, the applicant of the decision and the reasons for it.

10 . The 2017 Regulations came into force on 3 April 2017 and set out detailed regulations for applications for the grant of an employment permit among other matters. The Regulations distinguish between various categories of employment permit. Part 6 of the 2017 Regulations addresses “ General Employment Permits”. Regulation 29 makes it clear that the occupations for which a General Employment Permit may be granted are employments which meet certain criteria set out in that regulation, other than the employments listed in schedule 4.

11 . Reading Regulation 29 in connection with s.12(3) of the 2006 Act, if an employment is listed in schedule 4 of the 2017 Regulations, the Minister must not grant an applicant a General Employment Permit for that category of employment. Hence, the overall task of the Minister – as conducted by the relevant officers – is (a) to determine whether the class of occupation in respect of which an application has been made for a General Employment Permit is listed in schedule 4, (b) if there is such a determination then the application must be refused and (c) if the determination is that the occupation is not listed, then the application must be considered by reference to the other criteria in the legislation. Viewed in that light, the matters in respect of which some element of determinative judgment or decision is required relates in the first instance to whether the occupation is listed in schedule 4 or not.

12 . That task may not be quite as straightforward as appears. This is because, for understandable reasons, it is not possible to list each and every possible occupation in respect of which a person may seek employment. Schedule 4 sets out in tabular form an extensive list of categories of employment. In some cases, it will be reasonably clear that an employment falls within those categories, for instance, employment permits cannot be granted for dispensing opticians. In other cases, it may not be immediately apparent whether or not the employment falls within one of the categories for which employment permits may not be granted. That issue is addressed by using as guidance a further form of classification: the Standard Occupational Classification system, known as SOC 2010. That is a form of classification system operated by the United Kingdom Office of National Statistics. The SOC 2010 classifies roles into occupational categories in which there are major groups broken down by sub-major groups followed by minor groups and unit groups.

13 . Schedule 4 of the 2017 Regulations sets out the employments in respect of which “ an employment permit shall not be granted”. Schedule 4 is set out in tabular form and the column headings including ‘ SOC – 3’, ‘ Categories of Employment’, ‘ SOC – 4’ and ‘ Employment’. The Regulations make clear that “ SOC – 3” and “ SOC – 4” refer to applicable sub-groups in SOC 2010. A large number of categories of employment are listed in schedule 4, and for the purposes of this case, the relevant section can be set out as follows:-

SOC – 3	Categories of Employment	SOC – 4	Employment
622	Hairdressers and related services	6221	Hairdressers, Barbers and related occupations
		6222	Beauticians and related occupations

14 . Finally, by way of explaining the legal background, the parties at the hearing agreed that the court should be furnished with a document from the UK Office of National Statistics setting out a breakdown of SOC-4 code 6222 – Beauticians and related occupations. That document sets out under the heading “ Job description”: “ Beauticians and related workers give facial and body beauty treatments, apply cosmetics and dress wigs.” Under the sub heading “ Entry requirements of this job” – the document sets out “ there are no minimum academic requirements for entry, though some colleges require candidates to possess GCSE's/S grades. NVQ's/SVQ's in beauty therapy are available at levels 1, 2 and 3. Professional qualifications are also available.” Under the sub-heading “ Tasks required by this job include;”, the following is set out:-

• • discusses clients requirements, analyses and advises client on appropriate skin care, and applies treatments to the face or body;

• • massages scalp, face and other parts of the body and carries out spray tanning;

• • uses waxing, threading, sugaring and other epilation techniques to remove any unwanted body hair;

• • cleans, shapes and polishes finger and toe nails, applies nail extensions;

• • applies make-up to hide blemishes or enhance facial features and advises clients on skin care and makeup techniques;

• • performs specialist treatments for conditions such as acne, applies skin rejuvenation therapies;

• • recognises problems and refers clients to medical practitioners if appropriate;

• • advises clients on diet and exercise to assist in weight loss and slimming;

• • maintains clients records, sells and advises on cosmetic products and services, and ensures appropriate health and safety issues are addressed.”

15 . Of most significance to the issues in the case, the following is set out in the final part of the document under the heading “ Jobs related to this code”:-

• • Beautician

• • Beauty Therapist

• • Nail Technician

• • Tattooist

16 . Therefore, it can be seen that the granting of employments permits is a highly regulated...