Facts: Mr P, a third-country national, initially applied to remain in Ireland as a permitted family member of an EU citizen. This application was refused and Mr P was in the process of seeking a review of this decision. As a result, Mr P did not have a permission to remain in the State. He applied for a General Employment Permit to take up a job as a head chef. This application was refused on the basis that he did not have a current immigration permission from the Minister for Justice and that it was therefore not possible to issue an employment permit, pursuant to section 12 of the Employment Permits Act 2006.
Mr P appealed this decision, submitting that the Minister for Business, Enterprise, and Innovation, under s.12(1)(i) of the Employment Permits Act 2006, as amended, could exercise discretion to issue an employment permit notwithstanding the fact that Mr P did not have an immigration permission. This appeal was refused, and the applicant pursued judicial review proceedings in the High Court.
Reasoning:
In the High Court, with reference to the decision in Ling and Yip Ltd v. The Minister for Business, Enterprise and Innovation [2018] IEHC 546, Barrett J held that the proposition that the application for an employment permit could not be processed because the applicant did not have an immigration permission was legally incorrect. The respondent submitted that the decision taken was a matter of policy by the Minister. However, Barrett J held that such a policy was not invoked or relied upon in the original decision or referred to in any of the pre-application documentation. It was suggested at hearing that something exceptional would have to present before a permit would be granted. However, Barrett J held that save for the mention of this at hearing, this policy was not referenced in the evidence and material before court. Barrett J dismissed a number of other criticisms and submissions made by the respondent because they were not raised or engaged with prior to the hearing.
Decision:
The court held that the reasoning given in the impugned decision was flawed, lacking in substance and inadequate to the extent that the Court could not determine whether there had been a fettering of discretion. The decision was quashed and remitted for fresh consideration.
