Employment Permits and Undocumented Migrants – Insights from the Courts.
We have been consistently approached by persons seeking to regularise their immigration status in the State on the basis of having been offered a job which is eligible for an employment permit, but having had that application rejected on the basis of their undocumented status. In other situations, we have provided advice to clients and prospective employers that their undocumented status is not an automatic barrier to applying for an employment permit when they mistakenly believe otherwise.
Section 12(1)(i) of the Employment Permits Act 2006 states that the Minister “may refuse” to issue an employment permit if “[t]he foreign national in respect of whom the application is made has landed in the State without the permission of the Minister for Justice and Equality and that permission is granted on the condition that the foreign national concerned shall not be in employment in the State”.
However, quite helpfully, the Courts have provided very useful guidance and insights into the discretionary powers used in deciding employment permit applications and have confirmed that being undocumented in Ireland (i.e., not having a permission) is not an automatic bar to applying for – and being granted – an employment permit. Additionally, there is no barrier to receiving an employment permit where a person already has a form of status allowing full-time employment, such as a stamp 4, in situations where that stamp will inevitably be revoked.
On the 21st December 2021, the High Court confirmed again that being in the State without permission is not an automatic bar to being granted an employment permit. This decision follows a line of clear and specific case law on these issues. We have set out below a summary of the current position in Irish law, showing clearly that undocumented migrants can apply for – and be granted – an employment permit, and so too can persons who already have a Stamp 4 permission in certain circumstances.
Undocumented migrants and employment permits
Very recently, on the 13th December 2021, the High Court in Yeasin v The Minister for Business, Enterprise and Innovation [2021] IEHC 821 held that the Minister’s refusal to issue an employment permit because the applicant was in the State without permission was incorrect. In that case, the applicant was issued a stamp 4 EU FAM residence card on the basis of EU Treaty Rights. However, that residence card was revoked because his wife had left the State and because his marriage was deemed to be one of convenience. Just days after the decision to revoke was made, he applied for a Critical Skills Employment Permit.
The Minister for Business refused the application on the basis that, because his residence card was revoked, he was in the State without the permission of the Minister for Justice. As per the Employment Permits Act 2003 – 2014, he sought an internal review of that decision. However, his review was also unsuccessful. The review decision stated that because he was in the State without the permission of the Minister for Justice, “it was not possible to issue an employment permit”.
The negative review decision was challenged in the Courts by way of Judicial Review. The High Court held that the language used by the Minister (i.e., that “it was not possible to issue an employment permit”) meant that the Minister unlawfully fettered their discretion afforded by Section 12(1)(i) of the Employment Permits Act 2006, which states that the Minister “may refuse” an application for an employment permit if the applicant does not have a current permission. The language used in the Act clearly provided a discretion – the Minister was not obliged to refuse the employment permit, or not constrained by the absence of a permission, as suggested by the language used in the negative review decision.
The Court’s decision in Yeasin is a continuation of previous consistent case law that the absence of a valid permission is not an automatic bar to being granted an employment permit. In Ling and Yip Limited v The Minister for Business, Enterprise and Innovation [2018] IEHC 546, High Court similarly held that the Minister acted unlawfully in refusing an employment permit on the basis that the applicant did not have a valid permission to be in the State. The applicant in Ling and Yip Ltd applied for an employment permit, which was refused, and a review of that decision was also refused. In the refusal decision, the Minister stated that because the applicant did not have a current permission to be in the State, “an employment permit cannot be issued”.
Like the decision in Yeasin, the Court stated that the language used by the Minister in the negative review decision demonstrated an unlawful fettering of the discretion provided by Section 12(1)(i) of the Employment Permits Act 2006.
Migrants with Stamp 4 permission
It is generally more common for an undocumented person to seek an employment permit than a person who is already in the State on the basis of a Stamp 4 permission, which entitles the holder of such permission to work full-time without the requirement of an employment permit. However, the situation of a Stamp 4 holder applying for an employment permit is not unheard of. This was the situation in the recent (3rd March 2021) Court decision of MD Liton Hossain v The Minister for Business, Enterprise and Innovation [2021] IEHC 152.
Mr. Hossain had a Stamp 4 EU FAM on the basis of being the spouse of an EU national. However, his spouse had left the State and so his residence card was eventually due to be revoked per the European Communities (Free Movement of Persons) Regulations 2015. However, before his card was revoked, he applied for an employment permit in order to regularise his position (knowing that his residence card was eventually going to be revoked). However, the Minister for Business refused his application on the basis that he was not a person requiring an employment permit due to the Minister’s interpretation of Section 2(10)(d) of the Employment Permits Act 2006.
The Court, however, held that just because a person is in possession of a permission which permits full-time employment, that does not prevent them from applying for – and being granted – an employment permit. This is because the Minister retains a discretion to grant an employment permit under Section 8 of the Employment Permits Act 2006, which provides – in the words of the Court – “a wide discretion in the Minister to grant employment permits, subject only to the provisions of the sections and subjections stated therein”, none of which make reference to excluding a non-national with a permission entitling them to work in the State”. Similarly, Section 12 of the Employment Permits Act 2006 – which sets out a large number of grounds on which the Minister may refused to grant an employment permit – does not include as one of the grounds for refusal the fact an employment permit applicant has a permission entitling employment.
In a similar case, the same conclusion was reached. In Singh v The Minister for Business, Enterprise and Innovation [2018] IEHC 810, the applicant had a Stamp 4 EU FAM based on being the spouse of an EU national. However, his residence card was revoked on the basis of his divorce and his spouse’s departure from the State. While is EU Treaty Rights review was on-going – and he had a Temporary Stamp 4 at the time – he applied for an employment permit. This application was refused, and he sought a review, which was also refused, on the basis that his current Stamp 4 meant that he had no requirement for an employment permit.
For the same reasons as outlined above in respect of the Hossain case, the High Court overturned the refusal on the basis that it unlawfully fettered the statutory discretion afforded to the Minister for Business and that it is not stated anywhere in the Employment Permits Acts that a person holding a current permission entitling employment is excluded from applying for – and being granted – an employment permit.
Conclusion
The recent decision of Yeasin once again confirms that undocumented migrants are fully entitled to apply for an employment permit and that their undocumented status is not an automatic bar. It must be understood, however, that being in the State without permission can still be a ground to refuse an employment permit application, but only lawfully so if reasons are provided and the statutory discretion is properly exercised as opposed to unlawfully fettered, as was the case in the above Court cases.
If you are undocumented and seeking to regularise your position, you can still apply for an employment permit. However, in light of the Regularisation Scheme, you should seek professional legal advice as to the most appropriate course of action which may be open to you. If you are a person who is in the process of having their EU Treaty Rights (or other permission) revoked, you may still apply for an employment permit.
If you require any advice or assistance in respect of your immigration status, we are here to help and guide you along the way.
