The High Court has quashed decisions refusing critical skills employment permits to two applicants, finding that the Minister’s classification of their proposed jobs as finance and investment analyst or adviser roles had no rational basis in the material before the decision-maker.
The judicial review cases were heard together. Both applicants sought permits for business and financial project manager positions paying less than €64,000 a year. Under the applicable regulations, that salary level required the jobs to be listed in Schedule 3 to qualify for a Critical Skills Employment Permit.
The Minister’s department refused both applications in November 2020, concluding that the jobs were not on the Critical Skills Occupation List. On review, the department classified the roles under SOC code 3534, covering finance and investment analysts and advisers. The applicants argued that this classification was irrational and sought to have the review decisions quashed.
The Minister argued that deciding which occupational code applied was for the department, and that the applicants were asking the court to conduct an impermissible merits review. The applicants accepted that the Minister determined whether a job was on the list; they challenged the specific code used to reach that conclusion.
Mr Justice Rory Mulcahy said the Minister could have refused the applications if not satisfied that the jobs were on the Critical Skills Occupation List. But in these cases, the decisions rested on the conclusion that the roles fell under code 3534. The court found nothing in the descriptions of the proposed jobs to indicate that the applicants would advise customers on buying investments, insurance, mortgages, pensions or other financial products, as that code describes.
The judge said he could identify no basis in the evidence for applying code 3534. The reviewing officer had also acknowledged in an affidavit that another code might have been more appropriate. Because the conclusion that the jobs were outside the list flowed from the irrational code classification, the refusal decisions were unlawful and had to be quashed.
The court ordered the decisions quashed and remitted both applications to different review officers for fresh consideration in light of the judgment. It did not decide that either applicant was entitled to a permit or that the jobs qualified for the list. Both cases were listed for mention on 7 July 2023 to address any costs applications.