Hossain v Minister for Business, Enterprise and Innovation


Hossain v Minister for Business, Enterprise and Innovation
Respondent/Defendant:Minister for Business, Enterprise and Innovation
Court/s:High Court
Citation/s:[2021] IEHC 152
Judgment Date/s:03 Mar 2021
Judge:Barr A.
Category:Employment, EU Treaty Rights, Residence
Keywords:Employment, Employment of LEGALLY resident third-country national (Illegal), Employment Permit, Residence Permit
Country of Origin:Bangladesh

Facts: The applicant, a national of Bangladesh, was initially in Ireland as the spouse of an EU citizen. He held a Stamp 4 on this basis. The marriage subsequently broke down. Prior to the expiry of the applicant’s Stamp 4 permission, he applied for an employment permit. This application was refused on the grounds that at the time of application, he already had a valid Stamp 4 permission.

Reasoning: Central to the case was s. 2 of the Employment Permits Act 2003, as amended, which provides that a foreign national shall not enter the service of an employer except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006. S. 2(10)(d) provides that the section does not apply to a foreign national who is permitted to remain in the State by the Minister for Justice and who is in employment in the State pursuant to a condition of that permission.

It was held that the interpretation of s. 2(10)(d) by the Minister was incorrect. Recalling the ordinary and natural meaning of the provision, Barr J. held that the subsection does not exclude or prevent the Minister from issuing a work permit to an applicant solely on the basis that they already have a permission to work by virtue of the immigration permission held.

This reading was found to be supported by s. 8 of the Employment Permits Act 2006, as amended, which provides wide discretion for the Minister to issue employment permits, subject to certain provisions. It was accepted that none of the provisions refer to excluding a person who may already hold an immigration permission that entitles them to work. Similarly, s. 12 sets out the grounds on which a permit may be refused and the fact that the applicant already holds an immigration permission is not one of them.

Decision: There is nothing in the relevant legislation that explicitly prohibits the Minister from issuing an employment permit to a foreign national who already has a right to work by virtue of their immigration permission.

Principles:A person who holds a valid immigration permission is not precluded from applying for an employment permit.
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