Facts: Mr A, the first named applicant, was an Egyptian national who was offered a job as a software application developer in Ireland. He was issued with a Critical Skills Employment Permit. The applicant, along with his wife and child, then applied for visas to enter Ireland. Whereas the issuance of employment permits falls under the remit of the Department of Business, Enterprise and Employment, the issuance of visas falls under the remit of the Department of Justice. Their visa applications were refused, which was upheld on review. The reasons for refusal included insufficient documentation, that they had failed to satisfy the visa officer that they would observe the conditions of the visa, and that there were inconsistencies in the information provided in the application, including that the applicant did not have sufficient work history or qualifications for the job.
The applicants sought judicial review in the High Court, which upheld the Minister’s decision. The applicants appealed to the Court of Appeal.
Reasoning: In the Court of Appeal, Faherty J found that inadequate reasons were given for the finding that the applicants might not observe the conditions of their visas, due to limited explanation provided to the applicants.
On the reason of insufficient documentation and whether Mr A held the right work experience and qualifications for the job, Faherty J recognised that the information he provided contained little that would ordinarily be assumed to relate to a job as a software engineer or software developer. Nonetheless, Faherty J found that it was not made clear to the applicant as to what information was missing from his application. It was recalled that while there is no obligation per se on the respondent to give advance warning to an applicant about any perceived deficiencies or contradictions in the documents submitted, in this case, the applicants tried a number of different means to deduce what evidence was missing from their applications, including contacting the Embassy, with little support. Faherty J held that the short form reasons given by the respondent in the initial refusal did not enable him to know what type of material was required. In the particular circumstances of the case, Faherty J held that the respondent should have highlighted the deficiencies in the applicant’s qualifications and work experience for the post.
Lastly, it was affirmed that the fact that a Critical Skills Employment Permit was granted does not usurp or delimit the Minister for Justice’s discretion on visas and permitting entry to the State.
Decision: The appeal was allowed and the matter was remitted for reconsideration by a different decision-maker. The applicant was given four weeks to provide the decision maker with documentation as to his qualifications and experience.
