Sobhy v the Chief Appeals Officer, Minster for Employment Affairs and Social Protection and the Attorney General

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Sobhy v the Chief Appeals Officer, Minster for Employment Affairs and Social Protection and the Attorney General
Respondent/Defendant:The Chief Appeals Officer, Minster for Employment Affairs and Social Protection, Ireland and the Attorney General
Court/s:Supreme Court
Citation/s:[2021] IESC 81
Nature of Proceedings:Appeal
Judgment Date/s:16 Dec 2021
Judge:Baker M
Category:Immigration law
Keywords:Employment, Employment of ILLEGALLY resident third-country national (Illegal), Migrant (Illegally resident / staying), Regularisation
Country of Origin:Mauritius
URL:https://www.courts.ie/acc/alfresco/202b8113-c263-4b55-9f17-01d39a3c6e3c/2021_IESC_81.pdf/pdf#view=fitH

Facts: The applicant, a national of Mauritius, arrived in Ireland in 2008 under a scheme to attract foreign students. She studied and worked in Ireland lawfully until 2012. A change in the scheme required the applicant to apply for a change of status. Her two applications were refused. The applicant continued to reside and work in Ireland without an immigration permission. Throughout her employment, the applicant paid PAYE, and she and her employer made PRSI contributions. In December 2018, the applicant took maternity leave and in March 2019, she regularised her immigration status through a new scheme. The following month, in April 2019, she applied for maternity benefit under the Social Welfare Consolidation Act 2005. This application was refused by a deciding officer who held that as it was illegal for her to work without a permission between 2012 and the date of the regularisation of her status, she therefore did not have an entitlement to social welfare payments. This decision was upheld by the Chief Appeals Officer.

Facts: The applicant, a national of Mauritius, arrived in Ireland in 2008 under a scheme to attract foreign students. She studied and worked in Ireland lawfully until 2012. A change in the scheme required the applicant to apply for a change of status. Her two applications were refused. The applicant continued to reside and work in Ireland without an immigration permission. Throughout her employment, the applicant paid PAYE, and she and her employer made PRSI contributions. In December 2018, the applicant took maternity leave and in March 2019, she regularised her immigration status through a new scheme. The following month, in April 2019, she applied for maternity benefit under the Social Welfare Consolidation Act 2005. This application was refused by a deciding officer who held that as it was illegal for her to work without a permission between 2012 and the date of the regularisation of her status, she therefore did not have an entitlement to social welfare payments. This decision was upheld by the Chief Appeals Officer.

In the High Court, Heslin J relied on the doctrine of illegality developed in Quinn v. IBRC [2015] IESC 29, [2016] 1 I.R. 1. The High Court found that it was not self-evident that the applicant’s contract of employment held during a time in which she did not have permission to work in the State did not meet the requirements of the Social Welfare Consolidation Act 2005, nor that the contract was unenforceable and void. It held that it was incorrect to take as a starting point the fact that the applicant did not have a work permit to determine that the applicant had not made contributions under the 2005 Act. The High Court remitted the matter to the Chief Appeals Officer for further consideration.

Reasoning: The Supreme Court appeal centred on the question of whether an employment contract held by a person without permission to work, which is unlawful under the Employment Permits Act 2003 and entered into unlawfully by virtue of the Immigration Act 2004, can be regarded as a “contract of service” for the purposes of the Social Welfare Contributions Act 2005. The Supreme Court held that while the Employment Permits Act 2003 did not expressly provide that such an employment contract is either void or unenforceable, FÁS v. Abbott (unreported, Supreme Court, 23 May 1995) and Hussein v  Labour Court [2012] IEHC 364, [2012] 2 I.R. 704, establish, inter alia, that courts shall refrain from enforcing an illegal contract. A contract of employment entered into without a work permit by a person unlawfully in the State was illegal, save as expressly provided by statute. Thus, the phrase “contract of service” in the Social Welfare Contributions Act 2005 must exclude the employment contracts of persons who were required to hold work permit or visa and did not hold one. The Court could therefore not lend assistance to a claim for social insurance that would undermine the policy of the Employment Permits Act 2003 and the Immigration Act 2004. Furthermore, the relationship between the applicant and the State could not be characterised as a contract or contractual nexus.

While the High Court ruling relied on the concept of illegality developed in Quinn v. IBRC, the Supreme Court held it to be irrelevant to the statutory entitlement at issue. It found the present case concerned a matter collateral to the illegal contract of employment, that of entitlement to maternity benefit, and not an inter partes contract claim as in Quinn v IBRC.

The Supreme Court recalled that the statutory regime created by the Employment Permits Act 2003 and the Immigration Act 2004 have as a purpose the common good and the protection of the borders of the State. This would be frustrated should the Social Welfare Contributions Act 2005 be understood to grant maternity benefit to a person who was employed without a work permit on the basis of their PRSI contributions. This understanding was found to be in line with public policy.

Decision: Appeal allowed. The applicant was not entitled to maternity benefit under the 2005 Act on foot of her PRSI contributions. The PRSI contributions made by the applicant and her employer were to be refunded. In a comment at the end of the ruling, Baker J recognised that the ruling may make it attractive for an employer to employ an undocumented person because PRSI would not have to be paid. The judge stated that this may need further legislative clarity or intervention.

Principles:Social welfare benefits under the Social Welfare Consolidation Act 2005 cannot accrue to a person who does not have a work permit or immigration permission to be in the State, despite making the relevant statutory contributions.
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