Minister cannot refuse work permit, Court of Appeal rules

Ruling is potentially significant for employment law in the State

The Court of Appeal  noted, in the context of high unemployment levels, government economic policy views some low-skilled occupations as ineligible for employment permits because there are sufficient qualified Irish and EU nationals to fill such vacancies.

The Court of Appeal noted, in the context of high unemployment levels, government economic policy views some low-skilled occupations as ineligible for employment permits because there are sufficient qualified Irish and EU nationals to fill such vacancies.

 

The Minister for Jobs was not entitled, without specific laws,  to refuse an employment permit to a Pakistani man for an €18,000 a year job, the Court of Appeal has ruled.

The permit to the man, lawfully resident in Ireland since 2007, was refused on foot of government economic policy being against issuing such permits for jobs paying less than €30,000 annually. In a significant decision, the three-judge appeal court found the Minister had no power to refuse the permit via an administrative scheme, as he had done.

Any such refusal must be done by reference to criteria which must be specified by a statutory instrument approved by the Oireachtas, it ruled.

As a result of that finding, Mr Justice Gerard Hogan, with whom Mr Justice Peter Kelly and Mr Justice Sean Ryan agreed, overturned the refusal.

The court noted, in the context of high unemployment levels, government economic policy views some low-skilled occupations as ineligible for employment permits because there are sufficient qualified Irish and EU nationals to fill such vacancies.

New employment permit applications are generally only considered where a €30,000 minimum salary, based on a 39 hour week, is offered for a job not considered ineligible.

Under a student visa, the man was entitled to legally work for a maximum 20 hours weekly during term time and 40 hours otherwise. He sought a full-time permit after being offered a job as sales support assistant at an annual salary of €18,000. Securing that permit would have allowed his wife and child, who are in Pakistan, to join him here.

His appeal over the High Court’s rejection of his challenge to the refused permit centred on interpretation of overlapping provisions of the Employment Permits Act 2006.

Having analysed those, Mr Justice Hogan said there was a “potential conflict, overlap and inconsistency” between the practical operation of Section 12 and Section 14 of the Act.

Section 12 permits refusal of a permit where that is manifestly inconsistent with the economic policy, for the time being, of the government, he outlined. Section 14 provides for making regulations, which cannot last longer than two years, specifying minimum remuneration for work permits.

The judge found the High Court erred in ruling the Minister’s refusal was permissible under Section 12.

If the High Court decision was upheld, that would mean effectively circumventing the declared object and purpose of Section 14, he said.

While current government economic policy includes the question of minimum levels of remuneration for employment permits, policy might change in the future in such a way there would no longer be a potential overlap between Sections 12 and 14.

The two sections must be interpreted in a way that ensures they can be operated separately and independently of each other,  he said.  Section 12 must be read in a way that embraces matters touching on government policy

except minimum levels of remuneration because that matter was specifically reserved to the Minister by making regulations under Section 14 only.

That meant the Minister had no power to require, by means of an administrative scheme, that prospective employees show they would be paid more than €30,000 a year should an employment permit be granted.

If the Minister wanted to stipulate a minimum remuneration, that would have to be done by making regulations under Section 14. Such regulations could last a maximum two years, must be made by reference to specific criteria set out in Section 15 of the 2006 Act and must be put before the Oireachtas.