High Court dismisses judicial review claim against Minister for refusing employment permit due to lack of evidence for regularization efforts.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 383

Record No. 2024/317JR

BETWEEN/

KAYLIM SINGH

APPLICANT

AND

THE MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT

RESPONDENT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 3rd day of July 2025 CONTENTS

INTRODUCTION.................................................................................................................... 3 Preliminary ............................................................................................................................ 3 CHRONOLOGY & CORRESPONDENCE ......................................................................... 5 REVIEWED DECISION DATED 1ST FEBRUARY 2024 ................................................. 16 DISCUSSION AND DECISION........................................................................................... 17 The Employment Permits Act 2006 (as amended) ............................................................. 17 The Applicant’s Principal Argument ................................................................................. 22 PROPOSED ORDER ............................................................................................................ 38

INTRODUCTION

Preliminary

1. The applicant is a South African national who arrived in the State on 12th May 2022 on foot of a short stay visa and remained in the State after his visa had expired.

2. The applicant was granted leave to apply for judicial review by order of the High Court (Phelan J.) dated 29th April 2024.

3. In the applicant’s Statement of Grounds (date stamped 5th March 2024), he seeks to quash the decision made on behalf of the respondent (“the Minister”) refusing, on review, to grant the applicant a general employment permit in the exercise of the Minister’s discretion pursuant to section 12(1)(i) of the Employment Permits Act 2006 as amended, (“the 2006 Act”).

4. The central grounds argued by the applicant contend that the Minister unlawfully fettered her statutory discretion in refusing the permit and failed to give adequate reasons for this decision or such reasons, if deemed to have been given, were irrational.

5. On this latter ground, the applicant contends that if it is deemed that the basis for the Minister’s confirmation (on review) of the refusal to grant an employment permit was because no evidence had been produced to indicate that he had made any efforts to regularise his status since his arrival in the State, the applicant contends that this was irrational in circumstances where it is argued that he was seeking to regularise his position by applying for an employment permit.

6. The applicant’s grounding affidavit verifying this judicial review challenge was sworn on 28th February 2024. Affidavits of Reza Nezam solicitor of RNL Solicitors (who represent the applicant) were sworn respectively on 28th February 2024 and 7th May 2024, the latter correcting the departmental name of the Minister.

7. The Statement of Opposition filed on behalf of the Minister is dated 3rd December 2024 and is grounded on the affidavit of Siobhán McNamee, Solicitor of the Chief State Solicitor’s Office, which was sworn on 3rd December 2024. As referred to later, the documents referred to by the applicant were also exhibited in the Affidavit of Gerard Curran (HEO in the Respondent department) dated 4th December 2024.

8. At the hearing before me, it was confirmed that the focus of the applicant’s challenge in these proceedings was on the second of two reviewed decisions made on behalf of the Minister, namely that dated 1st February 2024 (rather than the decision dated 9th November 2023) to refuse the applicant a general employment permit pursuant to the 2006 Act.

9. In this regard, for example, a Reviewing Officer in the Employment Permits Section of the respondent department had written to the applicant and his prospective employer by letter dated 22nd December 2023 stating as follows: “I am directed by the Minister for Enterprise, Trade and Employment to refer to your letter requesting a review of the

decision to refuse the granting of an employment permit under section 13 of the Employment Permits Act, 2006 (as amended). Please note the appeal of this employment permit is still under review. I will revert to you in due course”.

10. It is accepted, therefore, that no application for an extension of time arises in this case.

CHRONOLOGY & CORRESPONDENCE

11. The applicant states that he sought to regularise his position in the State through his application for a general employment permit made in or around August 2023 on the basis of an offer of employment from Ardun Investments Ltd, trading as Kerb.

12. On 21st August 2023, the Minister, by way of an automated email response, acknowledged the applicant’s application for a general employment permit.

13. On 18th September 2023, the Minister refused the applicant’s application. In this correspondence (communicated by way of email), it was pointed out that:

“The Employment Permits Acts 2003 and 2006 as amended requires

the Minister, having regard to an application for an employment

permit, to consider the extent to which a decision to grant the permit would be consistent with the Government’s economic policy and whether the granting of the permit would be in the public interest in terms of protecting the labour market. Current Government policy promotes, in the first instance, employment growth through the filling of vacancies from the existing labour market.

Having considered all of the information provided with this

application, I wish to inform you that the granting of a permit in this case is being refused under the Employment Permits Act, 2006 as amended. Reasons for refusal in this case are:-

- It appears from the information submitted that the foreign

national is in the State without current immigration

permission from the Minister for Justice and Equality. In

line with section 12(1)(i) of the Employment Permits Act

2006 (as amended) an employment permit will not be

issued. It appears from the information provided that the

above named is currently in the State, you omitted to submit

any documentary evidence of Mr. Singh’s current or

previous immigration permission to enter/remain in the

State.

- The application does not include a statement from the

person who has made the offer of employment, confirming

that the establishment where the foreign national is to be

employed is not a fast food outlet and that the employment

is eligible for this employment permit type. In line with

12(3) of the Employment Permits Act 2006 as amended an

employment permit cannot be issued.

- In line with the Employment Permit Regulations 2017 as

amended all employment permit applications in respect of

employment’s [sic.] in restaurants or takeaways must be

accompanied by the required documentation. It appears

from the information received that you have not provided

the following:-

o an up-to-date tax clearance access number and tax

reference number in respect of the Person who has

made the offer of employment,

o or copies of utility bills for the establishment’s premises

dated within the period of 2 months prior to the

application,

o or a letter from the relevant Local Health Authority

confirming that the Person who has made the offer of

employment has been granted permission to operate a

restaurant or takeaway at the premises,

o a statement from the Person who has made the offer of

employment, confirming that the Foreign National in

respect of whom the application is made shall be

employed in an establishment other than a fast food

outlet.

As one or more of the listed documents has/have not been included with the application, in line with sections 12(1)(a)[1]and 12(3) of the Employment Permits Act 2006 as amended, an employment permit cannot be issued.

At the hearing before me, both parties accepted that the reference to section 12(1)(a) in this instance was an error and no reliance was placed upon it by the applicant. Should you wish this decision to be reviewed the applicant may do so in accordance with section 13 [of] [sic.] the Employment Permits Act, 2006 as amended, within twenty-eight (28) days from the date of this letter. Any such submission must be made in the prescribed form which is available on the Department of Enterprise, Trade and Employment’s website at… This form must then be emailed to the Reviewing Officer at… The Review will be considered on the basis of the evidence available to this Department and any further information of relevance which you may wish to submit”.

14. On 16th October 2023, the applicant’s solicitors, RNL Solicitors, wrote to the Reviewing Officer of the Employment Permits Section of the respondent department seeking a review and referring to the letter dated 18th September 2023 refusing the applicant’s application for an employment permit.

15. The letter of 16th October, inter alia, addressed the various matters set out in the correspondence dated 18th September 2023 on behalf of the Minister. For example, it included various documentation, a schedule of documents and confirmation from the applicant’s proposed employer that he was not to be employed in a fast food outlet. None of those matters are at issue in this application for judicial review. Consequently, and insofar as the matters at issue in this challenge are concerned, the letter stated as follows:

“We note that our client’s application was refused stating the following:-

- “The information submitted shows that the

foreign national is in the State without current

immigration permission from the Minister for

Justice and the Equality. In line with section

12(1)(i) of the Employment Permits Act 2006 (as

amended) an employment permit will not be

issued.

It appears from the information provided that

the above named is currently in the State, you

omitted to submit any documentary evidence of

Mr. Singh’s current or previous immigration

permission to enter/remain in the State.”

We say, Mr. Singh’s current immigration permission allegedly

precluded him from entering employment in the State despite us

forwarding a copy of the case of P v Minister for Enterprise and

Innovation with the application that deals specifically with this issue”.

16. As mentioned earlier, the documents referred to by the applicant were also exhibited in the Affidavit of Gerard Curran (HEO in the respondent department) dated 4th December 2024 and this included, for example, a letter dated 25th September 2023 from the applicant’s prospective employer Kerb which stated:

“To whom it may concern:

I hereby confirm that Kaylim Singh, in respect of whom a visa

application has been made, shall be employed in this establishment, other than a fast-food outlet. Kerb is a full seven-day week, licensed restaurant, authorised to cook food on the premises and is registered as a Food Business Establishment under the Food Regulations Act 2006”.

17. On 28th October 2023, the Minister wrote to the applicant’s solicitors and his prospective employer referring to the request for a review of the decision to refuse the granting of employment permit under section 13 of the 2006 Act and stated inter alia as follows:

“Unfortunately there is insufficient information provided to further this review. In order to make an accurate and detailed decision you will need to provide the following details:-

• Details of the permission Mr. Singh entered the state on and

what steps he has taken to regularise his immigration

permission since his arrival.[2]

If a response is not received within 28 days from the date of this letter your request for review will be considered in light of the documentation on hand[s]”.

The bold, italics and underlining are contained in the original letter dated 28 th October 2023.

18. By letter dated 31st October 2023, the applicant’s solicitors wrote to the Reviewing Officer of the Employment Permit Section of the respondent department and stated, inter alia:

“Our client instructs that he entered the State on Visitor’s visa permission, and now this application is for his employment permit in the State. Our client relies on the case of P v The Minister for Business, Enterprise and Innovation, a copy of which is attached in relation to his current immigration status and application for his employment permit. Strictly without prejudice to our client’s right to apply for an employment permit while undocumented as noted in the aforementioned case. Recently, Irish 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 permission) is not an automatic bar to applying for – and being granted – employment permits”.

19. The letter enclosed a further copy of the decision of the High Court in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609.

20. The first refusal of the applicant’s request for a review is contained in the Reviewing Officer’s letter dated 9th November 2023, sent to the applicant, his solicitors, and prospective employer.

21. This letter referred to the applicant’s submission requesting a review of the decision to refuse the granting of an employment permit under section 13 of the 2006 Act and stated as follows:

“I have reviewed the information you have submitted in support of the request for a review and subsequent correspondence and I am satisfied that having considered all the circumstances of the application that the

decision to refuse an employment permit is the correct decision and I confirm that decision under section 13(4)(a) of the Employment Permits Act 2006 as amended. I understand that the application was refused on the basis that:- ‘It appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued.

It appears from the information provided that the above

named is currently in the State, you omitted to submit any

documentary evidence of Mr. Singh’s current or previous

immigration permission to enter/remain in the State…’”.

22. The letter then reiterates other previous grounds of refusal and notes that various matters were “received with review” (outlined in red font) which, as senior counsel for the applicant suggests, appears to confirm that each of those separate (including documentary) issues were resolved except for the initial ground of refusal referred to above. At the end of the letter, it was further stated:

“While I note your correspondence in this matter, it appears Mr. Singh currently holds no immigration status in the State. No evidence has been produced that would indicate he has made any effort to obtain the correct immigration permission or to regularise the situation since his arrival. Therefore, a decision has been made based on the information supplied to date. In line with section 12(1)(ic) [sic.][3] of the Employment Permits Act 2006 (as amended) an employment permit will not issue”.

23. By letter dated 14th November 2023 in relation to the general employment permit application, the applicant’s solicitor wrote to the Reviewing Officer of the respondent department and stated inter alia as follows:

“We note that you have refused our client a General Employment

Permit pursuant to the Employment Permits Act (as amended) and it would seem that your position is that the said application was refused as you have stated:- It appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section It is accepted that this is a typographical error and was meant to be a reference to section 12(1)(i) of the Employment Permits Act 2006, as amended and no issued is raised on behalf of the applicant.

12(1)(i) of the Employment Permits Act 2006 (as amended) an

employment permit will not be issued. It appears from the

information provided that the above named is currently in the

State, you omitted to submit any documentary evidence of Mr.

Singh’s current or previous immigration permission to

enter/remain in the [S]tate.[4]

It has always been our position and still is our position that it is not strictly necessary for an Applicant for a General Employment Permit to have permission to remain in the State. In such circumstances, we invite you to withdraw your decision and to make a fresh decision within a period of 7 days. Otherwise, our client reserves the right to initiate Judicial Review proceedings and will [sic.] rely upon this letter and affix you with all the costs associated with same”.

24. By letter dated 24th November 2023, a Reviewing Officer of the Employment Permit Section of the respondent department wrote to the applicant and his prospective employer, and stated as follows:

“I am directed by the Minister for Enterprise, Trade and Employment to refer to your letter requesting a review of the decision to refuse the granting of an employment permit under section 13 of the Employment Permits Act, 2006 (as amended).

The bold type and italics were in the original letter. Unfortunately there is insufficient information provided to further this review. In order to make an accurate and detailed decision, you will need to provide the following details:-

1. Can you please detail what steps the foreign national has

taken to regularise their immigration status to date and

provide evidence of same.[5]

If a response is not received within 28 days from the date of this letter your request for review will be considered in light of the documentation on hand[s]”.

25. The letter dated 24th November 2024 is replied to by email dated 27th November 2023 from the applicant’s solicitor, which reiterates the applicant’s position that he entered the State on a Visitor’s visa permission and now this application was for his employment permit in the State and reference is again made to the decision of the High Court in P v The Minister for Business, Enterprise and Innovation6 and that it is strictly without prejudice to the applicant’s right to apply for an employment permit while undocumented which, it is stated, is noted in that judgment. The e-mail encloses a further copy of the decision in P v The Minister for Business, Enterprise and Innovation and adds as follows:

“Recently, Irish Courts have provided very useful guidance and

insights into the discretionary powers used in deciding permit

The bold type and italics were in the original letter. P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609 (Barrett J.). applications and have confirmed that being undocumented in Ireland (i.e., not having permission) is not an automatic bar to applying for – and being granted – employment permits”.

REVIEWED DECISION DATED 1ST FEBRUARY 2024

26. As referred to earlier in this judgment, the decision which is sought to be impugned in this application for judicial review is the decision of the Reviewing Officer in the Employment Permits Section of the respondent department dated 1st February 2024 which inter alia stated as follows:

“I am directed by the Minister for Enterprise, Trade and Employment to refer to your submission requesting a review of the decision to refuse the granting of an employment permit under section 13 of the Employment Permits Act 2006 as amended.

I have reviewed the information you have submitted in support of the request for review and subsequent correspondence and I am satisfied that having considered all the circumstances of the application that the

decision to refuse an employment permit is the correct decision and I confirm that decision under section 13(4)(a) of the Employment Permits Act 2006, as amended.

I understand that the application was refused on the basis that it appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued.[7] While I note your correspondence in this matter, it appears Mr. Singh currently holds no valid immigration status in the State. No evidence has been produced that would indicate he has made any efforts to regularise his situation since his arrival. Therefore, a

decision has been made based on all the information supplied to date to not grant a permit for this application. If a fee has been paid in respect of this application, a refund of 90% of any fees will be refunded to the applicant on receipt of the completed enclosed electronic funds transfer mandate form”.

DISCUSSION AND DECISION

The Employment Permits Act 2006 (as amended)8

27. The 2006 Act was repealed, subject to transitional provisions, by the Employment Permits Act 2024, but its provisions were applicable at the time of the decision-making process which is challenged in this application for judicial review.

28. Section 6 of the 2006 Act addressed the application for an employment permit and the information which was to be provided. Section 6(b) of the 2006 Act provided that an application for an employment permit shall provide information in respect of the The bold type and italics were in the original letter dated 1st February 2024. Also referred to in this judgment as “the 2006 Act”. qualifications, skills, knowledge and experience that are required for the employment concerned.

29. Section 11 of the 2006 Act provided for the ministerial consideration of an application for an employment permit, as follows:

“11(1) In considering an application for an employment permit, the Minister shall have regard to

(a) the extent to which a decision to grant the permit would be consistent with economic policy for the time being of the Government,

(b) whether the knowledge and skills and, where appropriate, the

qualifications and experience referred to in section 6(b) are required for or relevant to the employment concerned, are necessary for, or relevant to, the employment concerned,

(c) such of the other matters referred to in section 6 as are relevant to the application,

(d) if any of paragraphs (a) to (j) of section 12(1) fall to be applied in relation to the application, any matters that, in the opinion of the Minister, or material to the application of such a paragraph or paragraphs, and

(e) the different purposes, specified in section 3A(2) for which an employment permit may be granted.”

30. Section 12 of the 2000 Act deals with the circumstances of a refusal to grant an employment permit.

31. One of the central provisions in issue in this case is section 12(1)(i) of the 2006 Act, which provides as follows: “The Minister may refuse to grant an employment permit if the foreign national concerned lands or has landed, or is or has been, in the State without permission”.9

32. It is common case between the parties that this provision vested a discretion in the Minister and it is the exercise of that discretion in refusing the applicant an employment permit which is the principal issue in this judicial review challenge.

33. In contrast, section 12(3) of the 2006 Act was a mandatory requirement which provided that subject to sections 20A(5) and 20B(5) of the 2006 Act, the Minister ‘shall’ refuse to grant an employment permit if the granting of it would contravene regulations under section 14 of the 2006 Act in force at the time that the decision on the application for the permit was made.

34. The review of a decision to refuse a permit was provided for in section 13 of the 2006 Act, as follows:

“13(1) A decision of the Minister to refuse to grant an employment permit may, in accordance with regulations under section 29(3), be Underlining added in this judgment. Section 12(1)(c) of the 20006 Act provides that the Minister may refuse to grant an employment permit if the foreign national, in respect of whom the application is made, has landed in the State with the permission of the Minister for Justice and Equality and that the permission is granted on the condition that the foreign national concerned should not be in employment in the State.

submitted by the applicant therefor to the Minister for review under this section.

(2) Such a submission of a decision for review shall be made within 28 days from the date the decision is notified under section 12 to the applicant.

(2A) Where—

(a) following a decision to refuse to grant an employment permit—

(i) the Minister receives information or documents relating to the application for the employment permit concerned,

(ii) the information is, or documents are, received within 28 days from the date the decision is notified under section 12 to the applicant, and

(iii) the applicant has not submitted the decision for a review, in accordance with subsections (1) and (2), and

(b) the Minister, having considered such information or documents, is satisfied that having regard to all the circumstances that it is appropriate to review that decision and to take such information or documents into account in such review, the Minister—

(i) may direct that the decision to refuse to grant the employment permit concerned be reviewed under this section, and

(ii) where he or she so directs, shall notify the applicant of the review.

(3) A review under this section of a decision referred to in subsections

(1) and (2A) shall be carried out by an officer of the Minister appointed by the Minister for the purpose; the person so appointed—

(a) shall not be the person who made the decision, and

(b) shall be of a grade senior to the grade of the person who made the

decision.

(4) In the case of a review of a decision referred to in subsection (1), the person so appointed having afforded the person who submitted the

decision for review an opportunity to make representations in writing in relation to the matter, may—

(a) confirm the decision (and, if the person does so, shall notify in writing the second-mentioned person of the reasons for the confirmation), or

(b) cancel the decision and grant to the foreign national concerned the employment permit the subject of the application to which the review relates.

(5) In the case of a review of a decision referred to in subsection (2A), the person so appointed, having taken into account the information or documents referred to in that subsection and afforded the applicant for the employment permit concerned an opportunity to make representations in writing in relation to the matter, may—

(a) confirm the decision (and, if the person does so, shall notify such applicant in writing of the reasons for the confirmation), or

(b) cancel the decision and grant to the foreign national concerned the employment permit the subject of the application to which the review relates.”

35. Section 13(4) of the 2006 reflects what is now a well-established public common law principle to give reasons for administrative decisions: see Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453.

The Applicant’s Principal Argument

36. Throughout the hearing of this application for judicial review it was candidly accepted on behalf of the applicant that the context in which this challenge by way of judicial review was brought included circumstances where the applicant had overstayed his visitor’s visa and as such this was not, relatively speaking, the most sympathetic of circumstances. The applicant’s employment contract, for example, was dated 21st January 2023 and therefore predated his employment permit application, which was made in August 2023, by approximately 7 months.

37. In brief, the applicant’s stated position was perhaps most concisely expressed in the following sentence in the letter from his solicitor dated 14th November 2023:

“It has always been our position and still is our position that it is not strictly necessary for an Applicant for a General Employment Permit to have permission to remain in the state.”

38. Further, as the email of 27th November 2024 confirmed, the position adopted by the applicant throughout the correspondence centred on his instructions that he entered the State on a visitor’s visa permission and that “now” his application was for an employment permit in the State and reliance, in this regard, was placed on the decision of the High Court (Barrett J.) in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609 in relation to the applicant’s “current immigration status and application for his employment permit”, stating that this was without prejudice to what was referred to as the applicant’s right to apply for an employment permit while undocumented “as noted in the aforementioned case”.

39. Having regard to the chronology (outlined earlier in this judgment), what was sought on behalf of the Minister from the applicant were details (“steps” and/or “evidence”) of how the applicant sought to regularise his immigration status.

40. As just mentioned, the applicant’s position, in opposing this application for judicial review, is that whilst it is accepted that it would not be a guarantee of conferring immigration status, it is argued that his application for an employment permit, in and of itself, evidenced his efforts and, therefore, constituted an act of seeking the regularisation of his immigration status. It is submitted on the applicant’s behalf, for example, that if he was armed with an employment permit, any application which he would make to regularise his immigration status would be strengthened, notwithstanding that he overstayed his visitor’s visa.

41. It is further submitted on behalf of the applicant that the role of the Minister for Enterprise, Trade and Employment is not to supervise immigration and that those responsibilities are, rather, for the Minister for Justice.

42. As stated earlier, the applicant seeks an order quashing the decision of 1st February 2024 refusing him an employment permit pursuant to 2006 Act on the grounds that: (1)

the Minister unlawfully fettered his discretion pursuant to section 12(1)(i) of the 2006 Act; and (2) failed to give adequate reasons for the decision.

43. The question of the fettering of ministerial discretion has been considered in a number of decisions of the Superior Courts and, in this case, particular reliance was placed on the decisions of the High Court in the following cases: the judgment of Noonan J. in Ling and Yip Ltd v The Minister for Business, Enterprise and Innovation [2018] IHEC

546 and the judgment of Meenan J. in Yeasin v Minister for Business, Enterprise and Innovation [2021] IEHC 821. It was also discussed in the context of what was primarily a ‘reasons’ analysis by Barrett J. in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609, which was the decision referred to and enclosed in the correspondence sent on behalf of the applicant to the departmental officials.

44. It was further argued that, if the rationale (reasons) for the ministerial decision was deemed to be that no evidence had been produced which would indicate that the applicant had made any efforts to regularise the situation since his arrival in the State, the Minister’s decision was irrational in circumstances where, it is submitted, the applicant was seeking to regularise his position by applying for an employment permit.

45. The High Court (Noonan J.), at paragraph (5) of his judgment in Ling and Yip Ltd, set out the terms of the Reviewing Officer’s reviewed decision dated 31st October 2017 refusing the appeal in that case, as follows:

“At the time of the application, it appears that Mr. Khong was in the State without current immigration permission from the Minister for Justice, Equality & Law Reform. As the previous permission had expired on 26th July and the application for its extension was submitted on 3rd August, Mr. Khong did not have the required immigration permission at the time of the employment permit application. Therefore, under s. 12(1) (i) of the Employment Permits Act, 2006, (as amended) an employment permit cannot be issued.[10] The weekly remuneration specified on the payslips for Mr. Khong does not match the amounts specified on the previous permit. The P60 submitted for 2016 shows total pay of €11,916.40 for a 53-week period. As neither the payslips nor the P60 confirmed that Mr. Khong received the remuneration specified on his previous permit, in line with s.

20(8A)(b) of the Employment Permits Act, 2006, (as amended), an

employment permit cannot issue.”11

46. In Ling and Yip Ltd, Noonan J. (at paragraph 9 of his judgment) observed that the use of the word “may” in section 12 (and in section 20) of the 2006 Act provided the Minister with a discretion to grant or refuse an employment permit “even in the presence of the circumstances identified in those sections” and that the “permissive rather than mandatory language adopted by the Oireachtas places a duty upon the Minister to act fairly and judicially in exercising the power conferred by the statute” (referring to East Donegal Co-Operative Livestock Mart Limited v Attorney General [1970] I.R. 317).

Emphasis added in this judgment. Emphasis added in this judgment.

47. Noonan J. observed, at paragraph (10) of his judgment, that in exercising this discretionary power, the Minister had a duty to consider “the individual facts of each case” as they arise and gave the following examples:

“in the context of an applicant being in the State without permission, a wide range of circumstances could arise. An applicant may have arrived in the State unlawfully and worked here unlawfully for a lengthy period. In contrast, Mr. Khong entered the State lawfully and worked here lawfully for several years but his employer was eight days late in applying for a new permit. The two situations are not comparable but both fall within the range of circumstances that the Minister must have regard to in the exercise of her discretion.”

48. In this case, the context of Mr. Singh’s situation includes over-staying his visitor’s visa and approximates more with the first scenario identified by Noonan J. rather than the facts of Mr. Khong’s case which is further distinguished in that eight days after Mr. Khong’s employment permit had expired, his employer (the applicant in that judicial review application) had applied for a renewal of the permit. This was refused for two reasons: first, Mr. Khong was in the State without immigration permission from the Minister for Justice, Equality & Law Reform because his permission to remain in the State had lapsed with his employment permit; and second, the documentation submitted with the renewal application showed that Mr. Khong had received less than the annual remuneration stated on the previous employment permit and fell below the minimum required by the 2006 Act.

49. In addition, the relevant wording used in the impugned decision at issue in Ling and Yip Ltd v The Minister for Business, Enterprise and Innovation stated at paragraph 5 that “[a]t the time of the application, it appears that Mr. Khong was in the State without current immigration permission from the Minister for Justice, Equality & Law Reform … Therefore, under section 12(1)(i) of the Employment Permits Act, 2006, (as amended) an employment permit cannot be issued.”12

50. As stated, Noonan J. held that the ministerial discretion was captured by the wording of section 12 of the Act of 2006 and the use of the word “may”. He considered, on the facts of that case, that the Minister had abdicated responsibility to exercise her ministerial discretion by concluding that the mere fact that Mr. Khong was technically in the State without permission at the material time meant that an employment permit ‘cannot be issued’ and that this statement was manifestly incorrect as a matter of law.

51. A similar view was held in Yeasin v Minister for Business, Enterprise and Innovation [2021] IEHC 821 where at paragraphs 17 and 18 of its judgment, the High Court (Meenan J.) held that the wording of the impugned decision in that case, namely that the phrase “it was not possible” was synonymous with the words “cannot be issued” which were used in Ling and Yip Ltd and that accordingly, each of these terms were inconsistent with the exercise of ministerial discretion and were effectively a fettering of that discretion.

Emphasis and underlining added in this judgment.

52. As with Ling and Yip Ltd, the facts, and the approach to the exercise of ministerial discretion exemplified by the use of the synonyms “cannot be issued” in Ling and Yip Ltd and “it was not possible” in the Yeasin case (and in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609) are very different to that which applied in Mr. Singh’s case.

53. In Yeasin, the applicant, for example, was a Bangladeshi national who initially entered the State on a student visa issued by the Minister for Justice and Equality which was renewed periodically until such time as he was granted a residence card as a qualifying family member of his EU citizen spouse who was a Hungarian national. Consequent upon the unfortunate breakdown of his marriage, he wrote to the Minister for Justice and Equality seeking a change in his immigration status to allow him to continue to reside in the State, which was refused. Prior to the revocation of the applicant’s residence card on inter alia grounds that his marriage was allegedly one of convenience, the applicant’s then solicitors applied for a Critical Skills Employment Permit to allow him to take up a job offer to work as an accountant because, after his arrival in the State, he had both qualified and had been employed as a Chartered Accountant.

54. Similarly, the facts in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609, which the applicant referred to in his correspondence with the Minister, are very different to those which applied in Mr. Singh’s case.

55. Mr. P was a chef and a third country national. His solicitors had advised the Minister that Mr. P’s lack of immigration status was not his fault and that he had a pending application with the EU Treaty Rights Unit of INIS for a residence card as the household and/or dependent family member of an EU national exercising EU Treaty rights in Ireland. It was stated that this application had in fact been held up in litigation over the meaning of the terms ‘household membership’ and ‘dependency’ for the purposes of the EU Treaty and it was contended that he had been prejudiced by the failure of the Minister for Justice to implement court judgments which favoured such applicants pending their appeal. It was contended that Mr. P was “stuck in a limbo state in Ireland where he cannot be removed, as his case is formally under consideration; he cannot leave voluntarily or else, post-Brexit, he will lose his rights under the Treaty; and yet he is not permitted to put his considerable skills to work in the Irish economy.” The nature of the engagement by Mr. P in the exchange of correspondence with the State also stands in contrast to that engaged in by Mr. Singh in this case which is encapsulated inter alia in the following reference by Barrett J. at paragraph 4 of his judgment: “exhibited among the documentation before the court is the original, detailed application, which included, for example, a contract of employment, personal details and references, etc. Mr P avers in his affidavit that this application documentation was followed up within a couple of weeks by a letter from his solicitor arising from the particular circumstances that presented by virtue of his not having an immigration permission; a copy of this document (a letter of 16th August 2019 from Abbey Law Solicitors to the Department of Business, Enterprise and Innovation) has been exhibited in these proceedings. Although this document highlighted that Mr P did not have an immigration permission, it also set out the particular circumstances presenting which Abbey Law was asking the respondent to take account of in this regard”.

56. The Minister, in her reviewed decision which upheld the initial decision refusing to grant an employment permit, inter alia noted that it appeared from the information submitted that Mr. P, as a foreign national, was in the State without13 immigration permission from the Minister for Justice and Equality and that “[i]n line with s.12(1)(i) of the Employment Permits Act 2006, as amended, it was not possible to issue an employment permit”.14 As mentioned earlier, this erroneous understanding and characterisation of the nature of the discretionary power was similar to the approach in Yeasin v Minister for Business, Enterprise and Innovation [2021] IEHC 821, where the wording of the impugned decision was also “it was not possible” and held to be incorrect as a matter of law.

57. Ultimately, Barrett J. referred to the inadequate reasoning in the impugned decision together with submissions which were made on what he described as a “contended-for policy” before inter alia concluding that the impugned decision was so “thoroughly flawed in terms of the reasoning” that he could not determine properly whether or not there had been a fettering of discretion.

58. As observed earlier, Mr. Singh’s circumstances are closer to the example cited by Noonan J. in Ling and Yip Ltd where an “applicant may have arrived in the State unlawfully” in that Mr. Singh overstayed his visitor’s visa and had not (save for what, it is argued, is met by this work permit application) regularised his immigration status at any point prior to his work permit application.

59. Further, the context and operative words used in the refusal dated 1st February 2024 in Mr. Singh’s case, namely that a work permit “will not be issued”, are entirely different [sic.]. Underlining added in this judgment. from the respective contexts and the terms “it was not possible” or “cannot be issued” which were employed in P, Ling & Yip Ltd., and Yeasin and exemplify the actual exercise of a discretion and not its fettering.

60. In this case, Mr. Singh, for example, was informed as follows:

“I have reviewed the information you have submitted in support of the request for review and subsequent correspondence and I am satisfied that having considered all the circumstances of the application that the

decision to refuse an employment permit is the correct decision and I confirm that decision under section 13(4)(a) of the Employment Permits Act 2006, as amended.

I understand that the application was refused on the basis that it appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued.[15] While I note your correspondence in this matter, it appears Mr. Singh currently holds no valid immigration status in the State. No evidence has been produced that will indicate he has made any efforts to regularise his situation since his arrival. Therefore, a decision has The bold type was in the original decision. been made based on all the information supplied to date to not grant a permit for this application.”

61. Despite the exchange of correspondence between the parties, the applicant offered no basis or suggested rationale as to his particular circumstances as to why the Minister should exercise her discretion in a manner favourable to the applicant apart from the bald statement that “now this application is for his employment permit in the State” in the context of an overstay on an initial visitor’s visa.

62. Along the spectrum of decision-making in this case, the ministerial decisions and exercise of discretion are, in my view, reasoned, intra vires the 2006 Act and reasonable.

63. To recap, the Minister’s decision dated 18th September 2023, for example, inter alia states as follows:

“It appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued. It appears from the information provided that the above named is currently in the State, you omitted to submit any documentary evidence of Mr. Singh’s current or previous immigration permission to enter/remain in the State.”

64. The Minister’s decision dated 9th November 2023 inter alia states as follows:

“It appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued. It appears from the information provided that the above named is currently in the State, you omitted to submit any documentary evidence of Mr. Singh’s current or previous immigration permission to enter/remain in the State…’”

….While I note your correspondence in this matter, it appears Mr. Singh currently holds no immigration status in the State. No evidence has been produced that would indicate he has made any effort to obtain the correct immigration permission or to regularise the situation since his arrival. Therefore, a decision has been made based on the information supplied to date. In line with section 12(1)(ic) [sic.] of the Employment Permits Act 2006 (as amended) an employment permit will not issue”.

65. The Minister’s decision dated 1st February 2024 inter alia states as follows:

“I understand that the application was refused on the basis that it appears from the information submitted that the foreign national is in the State without current immigration permission from the Minister for Justice and Equality. In line with section 12(1)(i) of the Employment Permits Act 2006 (as amended) an employment permit will not be issued.[16] While I note your correspondence in this matter, it appears Mr. Singh currently holds no valid immigration status in the State. No evidence has been produced that will indicate he has made any efforts to regularise his situation since his arrival. Therefore, a decision has been made based on all the information supplied to date to not grant a permit for this application.”

66. Further, as referred to earlier, section 13(4) of the 2006 Act is another legislative example of the Oireachtas reflecting the public common law position that many administrative decisions require give reasons to be given: see Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453.

67. In this case, it is contended that the Minister failed to give adequate reasons for the refusal (on review) to grant an employment permit to the applicant. It is further argued that if it is deemed that the basis for the Minister’s confirmation (on review) of the refusal to grant an employment permit was because no evidence had been produced to show that he had made any efforts to regularise his situation since his arrival, this is irrational/unreasonable (as per O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39) in circumstances where it is argued that the applicant was seeking to regularise his position by applying for an employment permit.

The bold type was in the original decision.

68. Whilst the applicant does not accept that maintenance of this position is somewhat circular, for the following reasons, I do not consider that the decision-making process failed to comply with requirement to give reasons or that the ministerial rationale stated in this case was in any sense unreasonable.

69. It was accepted, for example, on behalf of the applicant that the circumstances and context of this application – namely, that the applicant overstayed his visitor’s visa permit and his failure (albeit, it was argued up to the time of his work permit application) to regularise his immigration status – may not be the most sympathetic of contexts. That said, it is nonetheless argued, on his behalf, that the decision which is sought to be impugned represents a further example of an erroneous approach to the exercise of ministerial discretion as found by the High Court (Noonan J.) in Ling and Yip Ltd v The Minister for Business, Enterprise and Innovation [2018] IHEC 546, the High Court (Meenan J.) in Yeasin v Minister for Business, Enterprise and Innovation [2021] IEHC 821 and the High Court (Barrett J.) in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609.

70. I have earlier in this judgment found that the ministerial decision-making process, including the decision dated 1st February 2024, which is sought to be impugned in these proceedings, was not unlawful and did not fall foul of the decisions of the High Court in, for example, Ling and Yip Ltd, Yeasin and P v The Minister for Business, Enterprise and Innovation.

71. The chronology and correspondence, which I have earlier set out, also confirms the nature of the detailed exchange between the applicant and the Minister and the nature of the applicant’s participation in that process.

72. In summary, the Minister’s position was that from the information and correspondence submitted by, and on his behalf at the date of the decision, the applicant:

(i) had omitted to submit any documentary evidence of his current or previous immigration permission to enter/remain in the State;

(ii) had not produced any evidence that would indicate the applicant had made any effort to obtain the correct immigration permission or to regularise the situation since his arrival;

(iii) currently held no immigration status in the State;

(iv) was a foreign national in the State without ministerially sanctioned approval and that in line with section 12(1)(i) of the 2006 Act (which provides that the Minister may refuse to grant an employment permit if the foreign national concerned lands or has landed, or is or has been, in the State without permission) an employment permit “will not be issued”.

73. Accordingly, based on the information supplied at the date of the ministerial decision, by and on behalf of the applicant, the Minister had made a decision, in line with section 12(1)(i) of the 2006 Act that an employment permit “will not issue”. This was not, in my view, the fettering, or otherwise unlawful exercise, of a ministerial discretion and there is no suggestion in this case that the officials acting on behalf of the Minister did not accept that the decision-making process was discretionary.

74. Equally, from the perspective of the ‘reasons’ jurisprudence, for example, in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453), the ministerial decision-making process satisfied the requirements of fairness which lies at the heart of the case-law on ‘reasons’ and the circumstances of his case are not analogous to those which were considered in Borta v Minister for Justice [2019] IECA 255.

75. The correspondence and chronology, for example, confirms that the process was fair, open and transparent and that Mr. Singh was able to engage and to respond to issues raised by the Minister and that he had participated in full in the process.

76. Again, in answer to the questions raised by the Minister, the applicant’s response was confined to repeating that first, he had entered the State on a visitor’s visa permission; second, he had applied for an employment permit in the State; third, he referred in a general way to the decision of the High Court in P v The Minister for Business, Enterprise and Innovation [2021] IEHC 609 in stating that he had a right to apply for an employment permit while undocumented. The fact that the applicant did not address the questions raised to the satisfaction of the Minister cannot, in my view, be attributed as a purported failure by the Minister, either in terms of the exercise of her discretion and or in the giving of a reasoned and rational decision.

77. In the circumstances, therefore, I refuse the applicant the reliefs sought by way of judicial review.

PROPOSED ORDER

78. Accordingly, I propose to make an order refusing the applicant the reliefs claimed by way of judicial review.

79. I shall put the matter in for mention at 10:30 on Wednesday 23rd July 2025 to address the question of costs and any ancillary and consequential matters which arise.

Appearances

80. Anthony Hanrahan SC and Keivon Sotoodeh BL appeared for the Applicant, instructed by RNL Solicitors, Augustine House, Oliver Bond Street, Dublin 8.

81. Mark J. Dunne SC and Hugh Guidera BL appeared for the Respondent, instructed by the Chief State Solicitor’s Office.

CONLETH BRADLEY

Thursday 3rd July 2025