The High Court quashed a decision refusing an employment permit to an Indian national after the review relied on different reasons without giving him an opportunity to respond. It remitted the matter to the first respondent for reconsideration; it did not order that a permit be granted.
The applicant came to Ireland on a student visa in January 2008. After marrying an EU citizen in May 2011, he received Stamp 4 permission, which allowed him to reside and work in the State. The marriage ended in divorce in July 2014, and his former spouse returned to Latvia. His application to retain his residence card was refused and placed under review. While that process continued, he received interim permissions, including Stamp 4 permission running from 22 March to 22 July 2017, according to the judgment.
A prospective employer applied for an employment permit on his behalf on 10 May 2017. The first respondent refused the application on 11 July, saying his immigration permission prevented him from working. The parties accepted that this reason was erroneous because he then held Stamp 4 permission.
The applicant sought a review. On 25 August 2017, the first respondent upheld the refusal on a different basis: its stated policy allowed certain people already legally resident in Ireland to apply for permits, but did not include holders of Stamp 4 permission, who were described as not needing a permit. The applicant had been given an opportunity to make representations about the original refusal, but not about the new reasons used on review.
The court considered whether section 13(4) of the Employment Permits Act 2006 allowed the reviewer to confirm the refusal for different reasons. It held that fair procedures required the applicant to have an opportunity to address those new reasons before the review decision was made. The judge distinguished an authority concerning an appeal where both parties had appeared and could address the substituted reasons.
The court did not decide the challenge to the underlying policy, finding it unnecessary to do so. It also rejected the respondents’ contention that the proceedings were frivolous and vexatious, noting that the applicant’s solicitor had explained that his Stamp 4 permission was due to expire and that this put him at risk.
The court granted certiorari quashing the 25 August 2017 decision and remitted the matter to the first respondent for consideration. The judgment did not grant the applicant an employment permit or determine the policy challenge.