The High Court has dismissed a judicial review challenge by Nisar Ali to the refusal of an employment permit, finding that the Minister could consider published criteria on eligible jobs and remuneration without making regulations under the Employment Permits Act 2006.
Mr Justice Noonan gave judgment on 15 April 2015. Mr Ali had sought to quash the Minister’s decision of 13 May 2014 and challenge the criteria used to assess permit applications. The court dismissed the application, finding that Mr Ali had not established any of the grounds on which he had been granted leave to bring the case. It did not decide an issue about alternative remedies, which it said was unnecessary to determine.
Mr Ali had been offered a full-time sales support assistant job at an annual salary of €18,000. His application was refused on the basis that the job fell within an ineligible category and that the salary was below the generally applied €30,000 threshold. The refusal letter said the decision was consistent with government economic policy and the public interest in protecting the labour market.
The Minister’s published criteria described annual remuneration as “generally above €30,000” and listed sales staff among occupations ineligible for permits. The judgment records that Mr Ali argued these criteria were effectively rules on job categories and pay that could only be introduced through regulations under section 14 of the Act. He also argued that the scheme infringed the Oireachtas’s constitutional law-making powers.
The Minister’s counsel argued that the Act gave the Minister discretion to grant or refuse permits and required consideration of government economic policy. Published criteria, the Minister submitted, could explain how that discretion was likely to be exercised.
Mr Justice Noonan distinguished the case from the Supreme Court’s decision in O’Neill v Minister for Agriculture and Food, which concerned a licensing scheme the court had found went beyond the relevant statute. He said the Employment Permits Act set out a detailed framework and required the Minister to consider economic policy, including labour-market protection. In his view, carrying out those duties could require consideration of matters such as job categories and remuneration, even where regulations had not been made.
The judgment also recognised that guidelines may help applicants understand how discretion is likely to be exercised. It noted that inflexible rules could unlawfully fetter discretion, but said there was room for guidance where it supported the statutory purpose. The court did not find that Mr Ali had raised a challenge based on the Minister unlawfully fettering discretion.
The decision addresses the legality of considering the published criteria in this application. The court dismissed the judicial review; it did not grant the requested order quashing the permit refusal.