The Court of Appeal has allowed an appeal by a Pakistani national whose application to enlist in the Defence Forces was refused because his permission to reside in Ireland did not cover the full 12-year enlistment period. The court held that the relevant legislation did not require an applicant to have an open-ended right to reside, or permission covering all 12 years, when enlisting.
The appellant, identified in the judgment as AJK, came to Ireland as an unaccompanied minor in 2012 and was granted subsidiary protection in October 2014. He applied to join the General Service and Naval Service in 2015 and 2016. After enlisting in the Naval Service in December 2016, he left the following month and later sought to join the General Service.
In April 2017, he was told he was ineligible because his residence permission did not meet a 12-year requirement. A Defence Forces letter cited an administrative instruction stating that a non-national’s permission had to be open-ended or cover the engagement period, including reserve service. After his solicitors sought a review, the Department of Defence wrote on 31 January 2018 that there were no regulatory provisions for his induction and that the required permission had to cover 12 years.
The High Court refused to quash that decision. On appeal, the Minister argued that enlistment decisions belonged to the military authorities and that the January 2018 letter merely repeated the earlier refusal. The Court of Appeal held that the Minister had responsibility for the Chief of Staff’s performance of recruitment duties and could review whether the law had been applied correctly. It found the January 2018 letter was a final decision amenable to judicial review, following the appellant’s request for review and the Department’s engagement with the military authorities.
On the substance, the court found that section 53 of the Defence Act 1954 did not require an applicant to prove an unimpeachable right to reside for the entire enlistment term. The recruiting regulations did not list limited residence permission as a disqualification. The court also held that a person with subsidiary protection was entitled under the International Protection Act 2015 to seek and enter employment in the same manner and to the same extent as an Irish citizen. The appellant was therefore not barred from enlistment because of his protection status or the duration of his residence permission.
The court allowed the appeal. It did not make final consequential orders in the judgment; it said their precise details would be settled after hearing submissions from counsel. The ruling addressed this challenge and did not establish a system for reviewing every enlistment decision.