The High Court ruled that the Minister could not refuse to consider an employment permit application solely because the applicant already held a Stamp 4 immigration permission allowing him to work in Ireland.
Mr Justice Barr delivered judgment electronically on 3 March 2021 in a judicial review brought by MD Liton Hossain against the Minister for Business, Enterprise and Innovation. The court found the Minister had erred in concluding that the legislation prevented consideration of the application. It proposed to quash the review decision and send the application back to a deciding officer for reconsideration under the judgment.
The applicant, a Bangladeshi national, had received Stamp 4 permission as the family member of an EU citizen exercising free movement rights. His marriage broke down and his wife returned to the UK. His permission was due to expire on 2 November 2021. He applied for an employment permit in November 2019, after telling immigration authorities about the change in his circumstances. His employer, which owned a hotel in Kilkenny, had offered him a two-year contract as a Chef de Partie.
The application was refused in March 2020 because he already held a Stamp 4 permission that allowed him to work without an employment permit. A reviewing officer upheld that decision in April 2020 and advised him to seek Stamp 1 permission before applying again. The applicant sought judicial review, arguing that his existing permission might be revoked or expire during the proposed employment, leaving him unable to work lawfully. He had offered to surrender his Stamp 4 permission if granted a permit.
The Minister argued that the applicant was exempt from the employment permit requirement under section 2(10)(d) of the Employment Permits Act 2003 and therefore was not eligible for a permit. The judgment records that neither refusal decision named that subsection, but the judge accepted that the decisions had proceeded on that basis.
The court interpreted section 2(10)(d) as relieving a person with a qualifying immigration permission from the requirement to hold an employment permit while working. It did not bar the Minister from issuing a permit to someone who already had permission to work. Given the anticipated expiry or possible revocation of the applicant’s Stamp 4 permission, the Minister was required to take a pragmatic approach and consider the application.
The court did not decide the applicant’s other grounds, including his challenge to the adequacy of the reasons given. It found the decisions’ grounds had been clearly stated, and said further reasons were unnecessary because the application had not been assessed on its merits.
The judgment set out a proposed order: certiorari of the 20 April review decision, a declaration that Stamp 4 status alone did not preclude applying for or receiving an employment permit, remittal for reconsideration and costs for the applicant. It also proposed a 28-day stay, continuing if an appeal notice was lodged within that period. The parties were given 14 days to make written submissions if they disagreed with the proposed order; the judgment stated that a final order would follow.