The High Court has rejected a Brazilian national’s challenge to the refusal of an estimated €10,356 redundancy payment from the State fund after his employer became insolvent.
Mr Justice Barr held that Nilton de Morais was not in “insurable employment” while working for Advertising Pens Limited between February 2012 and October 2021 because he did not have a valid employment permit or permission to reside in the State during that period.
Mr de Morais entered Ireland illegally in 2004. He worked for two companies between 2005 and 2021, paying PAYE, PRSI and USC. Advertising Pens ceased trading and he was made redundant on October 1, 2021. He later obtained Stamp 4 permission in October 2022 under the regularisation scheme for long-term undocumented migrants.
His application for redundancy payment was refused. A December 2024 review upheld that decision. Mr de Morais argued in the High Court that Irish law should have been disapplied because it conflicted with EU Directive 2008/94/EC, which protects employees when an employer becomes insolvent.
The court rejected that argument. Mr Justice Barr relied on the Supreme Court’s decision in Sobhy v Chief Appeals Officer, which held that a person working without a required permit does not have a lawful contract of service for social welfare purposes.
The judge distinguished a European Court of Justice decision involving an undocumented worker in the Netherlands. In that case, Dutch law otherwise recognised the worker as an employee. Irish law, by contrast, does not recognise an undocumented worker as an employee for these purposes.
The court also rejected an argument that Mr de Morais should have been required to pursue further statutory appeals, finding judicial review appropriate because the Workplace Relations Commission had already ruled that it lacked jurisdiction over the central issue.
All relief was refused. The final form of the order and costs were left for later determination.