Facts: The applicant, a national of Bangladesh, entered the State on the basis of a student permission. This permission remained valid until the applicant was granted a residence card as a qualifying family member of his EU citizen spouse. The marriage subsequently broke down and the spouse returned to their EU country of origin. The applicant wrote to the Minister for Justice and Equality to request permission to continue to reside in the State. His residence permission was revoked on grounds that included that it was based on a marriage of convenience. However, at the same time this revocation order was issued, the applicant had applied for a Critical Skills Employment Permit to take up employment as an accountant. On becoming aware of the revocation decision, the applicant requested the Minister exercise discretion to grant the application for an employment permit notwithstanding that he did not have a current immigration permission to be in the State. Reliance was placed on the decision of Ling and Yip Ltd v. The Minister for Business, Enterprise and Innovation [2018] IEHC 546 where Noonan J held that the Minister that the Minister did have discretion to grant an employment permit in such circumstances. The Minister refused the application on the basis that the applicant did not have a current immigration permission. The applicant challenged this decision by way of judicial review.
Reasoning: With reference to Ling and Yip Ltd v. The Minister for Business, Enterprise and Innovation [2018] IEHC 546 and s. 12(1) (i) of the Employment Permits Act 2006, as amended, Meenan J held that the Minister’s decision was incorrect in stating ‘it was not possible’ to issue an employment permit to the applicant because he did not have a valid immigration permission. It was held that the Minister has discretion to issue an employment permit to someone in the State without an immigration permission. The fact that the circumstances in the instant case were different to those in Ling and Yip Ltd (where the applicant’s immigration permission had expired due to the failure of a third party). was found to not alter this.
Decision: The decision of the Minister was quashed and remitted for reconsideration by a different officer of the Minister.
