The High Court has quashed a refusal to grant a Bangladeshi accountant a Critical Skills Employment Permit, finding that the decision wrongly treated his lack of current immigration permission as preventing a permit from being issued.
Mr Justice Meenan ruled that the Minister had discretion under the Employment Permits Act 2006 to grant a permit even where an applicant was in the State without permission. The refusal’s statement that “it was not possible” to issue a permit indicated that this discretion had not been exercised, he said.
The applicant came to Ireland on a student visa in 2007 and later qualified as a chartered accountant. He received a residence card in 2015 after marrying a Hungarian national. Following the breakdown of the marriage, his wife returned to Hungary, and he sought a change to his immigration status in 2018. That request was refused.
The Minister for Justice and Equality revoked his residence card in December 2018, stating that the marriage was one of convenience. The applicant did not seek a review of that decision, according to the Minister for Business, Enterprise and Innovation’s submissions in the judicial review.
Before he received notice of the revocation, the applicant had applied for a Critical Skills Employment Permit to take up an accountant’s job. After learning of the revocation, his solicitors asked the employment permits Minister to exercise discretion in his favour. The application was refused, and a review was also refused in July 2019. The review decision said the applicant lacked current immigration permission and that, under section 12(1)(i) of the Act, it was not possible to issue a permit.
The applicant argued that this wording showed the Minister had wrongly fettered her discretion. He also challenged the adequacy of the reasons and objected to the Minister relying in court on the alleged marriage of convenience, which was not mentioned in the refusal decision.
The Minister argued that the absence of permission was a statutory ground for refusing a permit and that the decision did not show a failure to recognise discretion. The court held that the words “it was not possible” had effectively the same meaning as “cannot be issued” and were inconsistent with the discretion provided by the Act. It also noted that the marriage allegation appeared in the Minister’s court submissions but not in the decision itself. Having found the provision was incorrectly applied, the judge said it was unnecessary to decide the separate reasons challenge.
The court granted certiorari and sent the decision back for reconsideration by a different officer. The judge’s initial view was that the successful applicant was entitled to his costs, including reserved costs, with the amount to be adjudicated if the parties could not agree. The Minister was allowed 14 days to make written submissions on costs if she wished to dispute them. The judgment does not state a final costs determination.