High Court quashes Minister's visa refusal for irrationality regarding evidence of employer-provided accommodation.

THE HIGH COURT

Record No. 2024 754 JR

[2025] IEHC 708

BETWEEN

Z.I.

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT delivered by Mr. Justice Sean Gillane on 9 December 2025

Introduction

1. On the 15th of November 2022, the applicant, who is a Pakistani national, applied for an Irish visa that would allow him to work in the State as a meat processor operative.

2. This application was refused at first instance by the respondent, which was communicated to the applicant by letter dated the 12th of January 2023.

3. The applicant appealed this refusal, as was his entitlement. By letter dated the 6th of March 2023, the applicant’s solicitor delivered appeal submissions together with further documentation to the respondent in support of his appeal.

4. By letter dated the 12th of March 2024, the respondent upheld the first instance decision and refused the appeal. It is this decision and the respondent’s approach to the appeal that gives rise to this application for judicial review.

5. The applicant had previously been refused an Irish visa on the 26th of May 2022, which was upheld on appeal on the 30th of August 2022. The agreed position of the parties is that this refusal has no bearing on the issues to be determined in this case.

Factual Background

6. Prior to making his application on the 15th of November 2022, the applicant had already obtained a work permit from the Department of Enterprise, Trade and Employment.

7. The applicant intended to work under a general employment permit and had not sought a critical skills employment permit.

8. His stated intention was to work as a general operative in a well-known meat factory in County Mayo, which had offered him full time employment at a rate of €441.00 per week, subject to the visa application. The underlying basis of his application was what was said to be two years’ experience working in a meat shop in Pakistan. A letter from his former employer was included in the application.

9. Another relevant feature of the factual background is that the applicant claimed to have accommodation available to him, paid for by his prospective employer and arranged through an established local auctioneer. A letter from the auctioneer was submitted as part of the original application.

10. It will be necessary to refer to the decisions at first instance and on appeal in some detail in order to understand the case advanced by the applicant.

11. The expressed grounds for refusal at first instance in the letter of the 12th of January 2023 were as follows: “ID:- Insufficient documentation submitted in support of the application:- please see link to ‘Documents Required’ as displayed on our website - www.irishimmigration.ie The strength of the overall application has been diminished due to the failure to provide sufficient supporting documentation in the following areas;

- Insufficient evidence submitted to demonstrate that you have the relevant qualifications or experience to undertake your proposed employment in the State.

- The experience certificate from [the meat shop] covering the period between 10 February 2020 and 5 April 2022 has been deemed as insufficient proof of previous employment. You have not provided any payslips, nor is there any evidence of payment of any salary in your submitted bank statement. The letter submitted does not contain any contact details and it is not possible for the Visa Officer to verify its contents.

- Accommodation Plan, you included a letter from [the auctioneer] who state you will be taking up residence at [an address in County Mayo]. This is deemed insufficient proof of accommodation. Insufficient detail has been submitted to show a contract is in place and it is not clear who is financing your proposed stay at the property.

F: - Finances- Finances shown have been deemed insufficient or incomplete (For reasons explained below, it is unnecessary to quote from this part of the

decision.)

OB:- Obligations to return to home country have not been deemed sufficient. The visa sought is for a specific purpose and duration: You have not satisfied the visa officer that such conditions would be observed. Information supplied by you concerning your personal, economic and family circumstances has been deemed as insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted.”

12. As noted above, the applicant appealed by letter dated the 6th of March 2023. Further documentation was submitted by the applicant to address the grounds for refusal identified at first instance and a number of submissions were made on his behalf.

13. In relation to the first issue concerning relevant qualifications or experience, the applicant’s solicitor explained that the applicant had been paid in cash, which was said to be a normal practice in Pakistan, and a further letter from his former employer dated the 13th of February 2023 containing contact details was submitted.

14. In relation to the second issue regarding accommodation, the applicant’s solicitor referred to the letter submitted by the auctioneer confirming the position in respect of accommodation and pointed out that the auctioneer’s contact details had been set out in that letter.

15. Further, in that regard, the applicant’s solicitor also provided details in relation to the applicant’s sister-in-law and brother-in-law, who were living and working in Ireland, and a letter confirming that his brother-in-law would provide financial help to the applicant upon his arrival in Ireland.

16. In addition, a further letter was provided by the applicant's prospective employer which confirmed that they would be paying for his accommodation, which had been arranged through the auctioneer, and that they were looking forward to the applicant starting employment with them.

17. In relation to the ground for refusal entitled ‘Finances’, it appears that the applicant’s solicitor provided further detailed information in relation to the applicant’s financial position. As a result, this ground for refusal appears to have fallen away and did not feature as part of the appeal decision (“the impugned decision”). There were no further submissions in that regard before me.

18. In relation to the ground for refusal entitled ‘Obligations to return to home country have not been deemed sufficient’, it was submitted on behalf of the applicant that he had strong ties in his home country of Pakistan and was married to a woman there with whom he shared three children. It was submitted that his prospective employment was a full-time job, that his permit would not allow him to work anywhere else and that his employer was covering the cost of his accommodation. The applicant also confirmed by way of affidavit that he would observe the conditions of the visa.

19. On the 12th of March 2024, the respondent wrote to the applicant indicating that his application had been re-examined and that his appeal had not been successful, and that the original decision to refuse the application would be upheld.

20. It appears, from the terms of that letter, that this appeal was determined on two broad bases:

1. Insufficient documentation submitted in support of the application.

2. Obligations to return to home country have not been deemed sufficient.

21. The impugned decision is expressed as follows:

“Dear Sir,

I am instructed by the Minister for Justice to refer to your appeal in relation to the above visa application. I am to inform you that your visa application has been re-examined by an Appeals Officer in the Visa Division. The Appeals Officer has taken all the documentation and information submitted with the original application and appeal into consideration. Your appeal has not been successful and the original decision to refuse your application is upheld. The reasons for the refusal of your appeal are as follows:

ID:- Insufficient documentation submitted in support of the application:- please see link to ‘Documents Required’ as displayed on our website - www.irishimmigration.ie The strength of the overall application has been diminished due to the failure to provide sufficient supporting documentation in the following areas;

- Insufficient evidence submitted to demonstrate that you have the relevant qualifications or experience to undertake your proposed employment in the State.

- It is noted that you have submitted an experienced letter from [the meat shop] stating that you were under employment for the period

10 February 2020 and 5 April 2022 as a ‘Meat Cutter’. It is further noted that ‘insufficient evidence submitted to demonstrate that you have the relevant qualifications or experience to undertake your proposed employment in the State’ was mentioned at first instance and that you had the opportunity to address this in your appeal (e.g.

letter from [the meat shop] further detailing your role in the

company, training/course certificates in the area, etc), yet no new documentary evidence as such has been submitted.

- Accommodation Plan - You included a letter from [the auctioneer] stating that you will be taking up residence at [an address in County Mayo]. This is deemed insufficient proof of accommodation as insufficient details have been submitted to show a contract is in place. It is further noted that your proposed employer stated that your proposed accommodation is being paid for by the company yet no evidence in support of this statement has been submitted.

OB:- Obligations to return to home country have not been deemed

sufficient. The visa sought is for a specific purpose and duration: You have not satisfied the visa officer that such conditions would be observed. Information supplied by you concerning your personal, economic and family circumstances has been deemed as insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted, with particular regard to the use of public funds/public resources, and the possible risk of overstaying in the State.” (Emphasis in the original.)

22. The letter continues in the following terms: “Please note, that while we are aware that you were granted an employment permit by the Department of Business, Enterprise and Innovation, you will note from your grant letter, that it specifically and expressly states that it ‘relates to employment only and it is not a residence permit or a permission to enter Ireland.’ It further states that ‘Persons who are nationals of countries that are visa required for travel to Ireland must make a visa application.’ It goes on to state that ‘In the visa application you will be required to submit evidence of your professional qualifications, if required, as well as evidence of previous work experience, if required.’ The functions and powers for the Minister for Business, Enterprise and Innovation, to regulate the labour market under the Employment Permits Act 2006, as amended, are quite distinct from the executive power of the Minister for Justice to control entry, residence and departure of foreign nationals. While on occasion, the exercise of those powers might seem to overlap, there is no basis for a suggestion that the existence or exercise the former, in any way ousts or constrains the exercise of the latter. This has been set out in relevant case law in this State.” (Emphasis in the original.)

23. The letter then goes on to quote from two decisions of the High Court: S v. Minister for Justice [2022] IEHC 578 (paragraph 37) and Akhtar v. Minister for Justice and Equality [2019] IEHC 411 (paragraph 24).

24. The letter then continues: “A non-national who has been granted a work permit is required to have a visa where the holder of the work permit comes within a class of non-national in respect of whom visas are required by orders made under section 17 of the Immigration Act 2004. Such orders are made by the Minister ‘for the purposes of ensuring the integrity of the immigration system, the maintenance of national security, public order or public health or the orderly regulation of the labour market or for the purposes of reciprocal immigration arrangements with other states or for the promotion of tourism.’ As a Pakistani National, an entry visa for employment purposes is required. In deciding a visa application, the Minister is required to consider all the information available to her in light of the purpose for which visa orders are made, including documentation submitted for the purposes of a work permit where that documentation is relevant to an assessment of a visa application.

It follows, that when, in the exercise of a broad executive power to control immigration, the Minister requires a foreign national, with a work permit, to establish, in order to obtain a visa, that s/he does have the appropriate level of experience for that employment, which is separate to the 2006 Act. Any applicant that is refused on that basis would have been deemed to have failed to disclose appropriate evidence of their skills, qualifications and experience when they submitted their application both at first instance and on appeal.

The onus rests on the applicant to satisfy the Visa Officer that a visa should be granted for the purpose sought. You should note that only one appeal per application is permitted. It is however open to you to submit a fresh application and should you decide to do so, I would advise that you address the refusal reasons as outlined in this

decision.”

25. It is this decision which is the subject matter of these proceedings.

Procedural Background

26. The applicant filed a statement of grounds on the 10th of June 2024 and leave to apply for judicial review was granted by Hyland J. on the 22nd of July 2024.

27. The applicant sought and obtained leave to apply for the following:

• An order of certiorari quashing the impugned decision.

• An order that the appeal be remitted back before the respondent for a full review by a separate decision-maker.

• A declaration that the respondent breached the applicant’s right to fair procedures as a result of the manner in which the decision-making process was undertaken.

28. Opposition papers were filed on the 6th of November 2024 denying that the applicant was entitled to any relief.

29. At the outset of the hearing, counsel for the applicant helpfully indicated that the declaratory relief was likely to be unnecessary if he were to succeed in obtaining an order of certiorari. As a result, no further submissions were made in respect of the declaratory relief.

30. During the course of the hearing, I asked about the status of the applicant’s work permit in the context of the issue of remitting the matter were an order of certiorari to be granted. I was informed that the work permit had expired and, in the course of discussion with counsel, the agreed position appeared to be that remitting the matter would be otiose in the absence of a valid work permit as the application would be doomed to fail.

31. However, counsel for the respondent conceded that a negative decision would remain on the applicant’s file and, therefore, did not argue for mootness in the strict sense. This was a sensible approach and consistent with the logic of the Court of Appeal in Mukovska v. Minister for Justice [2021] IECA 340.

32. Therefore, the hearing proceeded on the basis of an analysis of the impugned decision and argument about whether an order of certiorari should be granted as a result of the basis on which the decision was reached.

Submissions

33. The applicant contends for a complete lack of fairness in the way in which the appeal was treated by the respondent and submits that the respondent acted unreasonably and breached the requirements of fair procedures and natural and/or constitutional justice in the manner in which the appeal was conducted.

34. The central thrust of the applicant’s case is that the respondent effectively ‘moved the goalposts’ in subjecting the applicant to materially different criticisms and/or reasons for refusal of his application, which had not been identified or considered at first instance. In those circumstances, it is claimed that the applicant was denied a right of reply or an effective appeal in respect of these matters.

35. In addition to taking into account irrelevant considerations, it is also claimed that the respondent applied arbitrary requirements that exceeded the relevant guidelines published by the respondent herself.

36. It is submitted that the respondent had failed to properly consider relevant matters, including documentation submitted by the applicant, in particular documents addressing the issues raised in the first instance decision, and the fact that the applicant had been granted a work permit.

37. While it is the appeal decision that is being challenged, it is clear that the connection between the decision at first instance and the impugned decision is an important part of the applicant’s case.

38. In relation to the first ground of refusal in the impugned decision, the applicant says that it is important to look at the corresponding part of the first instance decision. It is submitted that the first instance decision states that applicant had provided insufficient proof of previous employment, which is to be read as though he had not worked in the meat shop at all. The applicant submits that he clearly demonstrated in his appeal that he had worked there.

39. It is submitted that the subsequent reliance by the respondent on the applicant’s qualifications and experience represented a material change in approach and rationale.

40. The applicant does acknowledge, as indeed he must, that the first instance decision refers to insufficient evidence to demonstrate that he had the “relevant qualifications or experience.”

41. However, the applicant submits that the first and second bullet points under this heading in the refusal letter are to be read as a single issue, and that the applicant responded to them in this way in his appeal submissions. In other words, by virtue of the fact that the respondent did not accept that the applicant had worked at the meat shop, the letter from the meat shop was then not acknowledged by the respondent as evidence of his experience.

42. It is submitted that the unfairness here is that the applicant was led to believe, for the purpose of his appeal, that the issue he had to address under this heading was whether he did in fact work in the meat shop during the relevant period.

43. The applicant says that it is a fundamental and unfair shift in approach for the respondent to suggest in the impugned decision that he did not garner the relevant qualifications or experience while working in the meat shop. It is submitted that this is a serious breach of the applicant’s entitlement to fair procedures.

44. Emphasis was also placed on the fact that the applicant intended to work under a general employment permit as a general operative in a meat factory, and therefore two years’ experience in a meat shop in Pakistan would objectively satisfy a requirement for evidence of prior experience.

45. Counsel for the applicant submitted that the grant of a work permit is a matter of some significance in the overall analysis. In this regard, he relied on the now-repealed section 3A(2)(c) of the Employment Permits Act 2006 which provides: “…where the Minister is satisfied that a person in the State has been unable to recruit an employee for a vacancy for an employment, to provide for the recruitment of a foreign national who has the required knowledge and skills for the employment and, where appropriate, the qualifications and experience as may be required for that employment.”

46. In relation to the issue of accommodation, under the same ‘ID’ heading in the impugned

decision, the applicant argues that the respondent imposed an arbitrary or unrealistic threshold requirement in requiring him to show that “a contract is in place.”

47. In this regard, the applicant points to the respondent’s website and the listed requirements there that require an applicant to show:

• “Details of your new job

• The salary you will be paid

• Details of the accommodation, if the employer is providing you with accommodation.”

48. It is submitted that the applicant had a legitimate expectation that he could rely on the published requirements in attempting to satisfy the respondent of his accommodation plan. The applicant also says that it is not permissible for the respondent to attempt to buttress her reasoning now by filing an affidavit referring to further extrinsic matters such as it being “standard practice” to require a contract.

49. In relation to the second heading in the impugned decision, “OB:- Obligations to return to home country have not been deemed sufficient”, the expressed reasoning of the respondent is identical to that of the first instance decision, except for the additional words underlined: “The visa sought is for a specific purpose and duration: You have not satisfied the visa officer that such conditions would be observed. Information supplied by you concerning your personal, economic and family circumstances has been deemed as insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted, with particular regard to the use of public funds/public resources, and the possible risk of overstaying in the State.” (Emphasis added.)

50. The applicant submits that the original ground for refusal on this basis had been addressed in detail by him, to include providing evidence of his strong family connections in Pakistan. It is argued that the reasoning above is effectively a “copy and paste” of the original decision, which does not reflect any engagement with the evidence provided.

51. Further, it is said that the additional words amount to the addition of a new rationale not previously asserted and that the decision under this heading represents the sort of “administrative throat-clearing” criticised by the Supreme Court in Balz v. An Bord Pleanala [2023] 3 I.R. 751. The applicant says that, in effect, he is “none the wiser” after his appeal as to the basis for the respondent’s rejection of his evidence and submissions on this issue.

52. The respondent submits that the applicant’s complaint is misconceived in fact and law and that it could not reasonably be urged that the applicant was not given a fair opportunity to present his application.

53. In general terms, it is submitted that there is no obligation to provide “an advice on proofs for the Applicant” or to investigate on his behalf.

54. It is argued that the respondent is not constrained by the reasons given at first instance.

55. It is argued that the first instance decision did in fact take issue with the applicant’s qualifications and experience, and that he had failed to provide sufficient evidence on appeal, despite being on notice of this infirmity in his application. The respondent says that the applicant chose to provide no detail of what his role in the meat shop actually entailed.

56. The respondent says that this failure is all the more important if the applicant wishes to contend that he is entitled to rely entirely on his work in the meat shop to prove his experience and qualifications. It is submitted that it is for the respondent to assess the weight of the evidence and, in any event, on an objective reading of the submitted documents, there is nothing to demonstrate the requisite qualifications and experience.

57. The respondent says that the first instance decision-maker determined that the applicant had submitted insufficient evidence to demonstrate that he had the relevant qualifications or experience to undertake the proposed employment and that the experience certificate submitted by the applicant was insufficient proof of previous employment. It is submitted that that these were two separate and distinct conclusions.

58. It is also submitted that, by reference to the respondent’s website, “evidence of qualifications and previous work experience must be submitted in support of the visa application.” (Emphasis in the original.)

59. In relation to the issue of accommodation, it is submitted that the respondent was fully entitled to require that the applicant demonstrate that a contract for accommodation was in place, and that he had failed to do so.

60. It is also submitted that the applicant’s complaint here is unsustainable in circumstances where the first instance decision expressly referred to the absence of evidence that a contract was in place and this was not addressed by the applicant in his appeal. Instead, in the respondent’s submission, the applicant argues that the respondent was precluded from imposing this requirement because he had produced a letter from his employer which stated that they were arranging and paying for accommodation.

61. It is submitted that the applicant’s claim to have a legitimate expectation arising out of the respondent’s published guidance is a flawed argument, particularly where the first instance decision itself clearly referred to the lack of a contract.

62. The respondent relies on the affidavit of Melissa Brennan, a Higher Executive Officer in the Visa Division of the Immigration Service Delivery division of the Department of Justice, which exhibits the guidance.

63. She says that the guidance does not impose a binding checklist on the respondent, nor does it state that a letter from an employer saying that they will be paying for accommodation would satisfy the accommodation plan requirements. She further says that it was unclear whether the accommodation arrangement was enforceable and that there was nothing in the contract of employment about accommodation.

64. Ms. Brennan says that it was objectively unclear who was providing the accommodation by reference to a letter provided by the applicant’s sister-in-law wherein she referred to a “wish to take in” her brother-in-law.

65. Ms. Brennan also says that “it is standard practice to seek proof that a contract for accommodation is in place, especially for longer term visa applicants such as the Applicant.”

66. The respondent further submits that the guidance above imposes a specific additional requirement where accommodation is provided by an employer, rather than providing a threshold for proving a satisfactory accommodation plan is in place.

67. It was also submitted that there were three separate and independent bases for the

decision: insufficient documentation relating to experience and qualifications, insufficient documentation in relation to accommodation and obligations to return home had been insufficiently evidenced. Each basis was capable of sustaining the

decision even in the event of this Court finding a legal frailty with the other grounds.

68. What was described by counsel for the applicant as a ‘pleading point’ was also raised by the respondent. It was submitted that the applicant had not challenged the ‘OB’ finding in his statement of grounds and therefore had no leave to challenge that finding before this Court.

Discussion

69. It was clear during the course of the hearing that many of the generally applicable principles were not in dispute.

70. It was accepted that the discretionary power vested in the respondent required her to consider all of the information made available to her and that it was for the respondent alone to weigh that information in coming to her decision.

71. That decision can only be struck down where it is found to be unreasonable, irrational and/or in breach of fair procedures. See K v. Minister for Justice [2022] IEHC 582 and I.S.O.F. v. Minister for Justice [2010] IEHC 386.

72. The Court is concerned with the question of lawfulness, rather than the merits of the

decision, and the lawfulness of a decision falls to be assessed by reference to the process as a whole. To substantiate a challenge to a decision as irrational or unreasonable, it is not sufficient merely to disagree with the evaluation made, nor is it enough to assert that the Minister ought to have given greater weight to some factors or less weight to others. See I.S.O.F..

73. A significant amount of deference must be afforded to the decision-maker, and the standard of review in a challenge to an exercise of a discretionary executive power is whether the decision sought to be impugned equates to a decision which flies in the face of fundamental reason and common sense. See O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642.

74. Immigration policy is a matter for the Minister, and she enjoys a very wide discretion in dealing with visa applications by non-EU or non-EEA citizens. Further, as held by the Court of Appeal in Mukovska: “…It is also established that there is no requirement on the Minister to refer to particular documents when giving reasons, and that reasons can be terse, in short-form, broad and/or general.”

75. It is to be presumed that the decision-maker has considered material where the decisionmaker has said that the material has been so considered. See LTE v. Minister for Justice [2022] IEHC 504 and M.H. (Pakistan) v. IPAT [2020] IEHC 364. In this context, Hardiman J. in G.K. v. Minister for Justice [2002] 2 I.R. 418 said: “…a person claiming that a decision making authority had, contrary to its express statement, ignored representations which it had received needed to produce some evidence, either direct or inferential, of that proposition before he could be said to have an arguable case.”

76. A work permit is not, in itself, evidence of work experience or qualifications, and it is not the law that the grant of a work permit acts as a bar to the respondent requiring the applicant to show that they are qualified to do the job for which they were granted the permit. In A.A. v. The Minister for Justice [2024] IECA 57, the Faherty J. held at paragraph 95: “…It follows, therefore, that the respondent was free to consider whether the person applying for a visa has the requisite qualifications and experience. The function of the Minister for Business, Enterprise and Innovation under the 2006 Act is wholly separate from the role of the respondent in the granting of visas to enable non-nationals (i.e. those from visa-required third countries) to apply to enter the State.”

77. However, as Bolger J. put it at paragraph 37 of S: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.”

78. This approach was approved in A.A., and Faherty J. said at paragraph 97: “…Once it was taken account of, that is sufficient, to my mind.”

79. S.M. v. Minister for Justice [2024] IECA 145 was a case concerning an application to quash a decision of the respondent whereby she refused an application for the issuance of a ‘D’ type visa to permit entry into the State.

80. At paragraph 85 of his judgment, Binchy J. said: “While the appellants argued that it was inappropriate for the trial judge to ‘sever’ the flawed conclusion regarding the potential of the second appellant to be a costs burden to the State, and further argued that it cannot be known how the respondent would have decided the appeal had she not arrived at this flawed

conclusion, in my view these arguments should be rejected. Firstly, such authorities as there are on the issue make it clear that it is open to the Court to refuse an order of certiorari even though a reason for an administrative decision has been struck down, where there are other valid reasons supporting that

decision see the passages quoted from the decisions of Humphreys J. in Olakunori and Barrett. J. in Mukovska at paras. 59 and 60 above. While these are both decisions of the High Court, and are not binding on this Court, the views expressed by Humphreys J. and Barrett J. on this issue appear to me to be correct in principle.”

81. This statement of principle is well-established and binding on me.

82. In the same case, Binchy J. also analysed the nature of the burden on an applicant to make their case and the extent to which an applicant should be afforded an opportunity to correct deficiencies or to clarify or explain materials provided by them in support of their application.

83. Before turning to Binchy J.’s conclusions in that regard, it is necessary to refer to O.O. v The Minister for Justice [2015] IESC 26. In that case, Charleton J. said at paragraph 17: “The general rule applied by the courts in the conduct of litigation is that parties should make the entire case that is available to them based on the facts which they assert entitle them to a remedy. Similarly, where a fair analysis has been applied to an issue through the application of constitutionally acceptable procedures, and where an appropriate and adequate level of appeal has been provided, parties to litigation cannot expect to achieve a different result by repeating the same facts or arguments, perhaps in different ways, to separate

decision makers. In administrative law, a body or person charged with making a decision is entitled to rely upon a previous fair and appropriately structured analysis of the essential circumstances of an applicant for relief. That analysis, on reconsideration, may lead to a different decision, depending upon whether an application to a different person or body is subject to a different test or whether that analysis, on reconsideration, may fairly yield a different result. Reanalysis may only become necessary where there has been a change of circumstances or new facts have come to light which were not readily obtainable on the earlier application.”

84. He continued at paragraph 22: “In this case, the correspondence from the solicitors for Esmé effectively invited the decision maker to engage in correspondence whereby further information might be forthcoming. Should [there] be information, then the obligation is on the applicant seeking that the deportation order be overturned to put whatever relevant material exists before the Minister. There is no obligation on the Minister to engage in correspondence. The onus at this point in the process is on the person seeking to overturn the order to make their best case there and then.”

85. The Court of Appeal in S.M. followed this approach. In doing so, the court also referred to the decision of Owens J. in M.A. v. Minister for Justice [2023] IEHC 291, wherein it was suggested that if a decision-maker needed clarification or further explanation of the material provided, the provider should be given an opportunity to comment.

86. That decision was subsequently reversed by the Court of Appeal in M.A. v. Minister for Justice [2024] IECA 26, without expressly overruling the determination that an applicant should be given an opportunity to provide clarification. However, in S.M., Binchy J. said that this part of the judgment of Owens J. had been inferentially overruled in the Court of Appeal decision.

87. In the context of the argument that the respondent had shifted ground or ‘moved the goalposts’, the applicant places emphasis on the decision in N.I. v. Minister for Justice [2023] IEHC 339 and, in particular, on the remarks of Barr J. at paragraph 76 where he stated: “To hold against an applicant on the basis of an argument that was never put forward by the applicant, nor was put to her for comment, is in breach of the principles of fair procedures.”

88. In N.I., the applicant sought an order quashing the decision of the Minister in relation to a visa appeal. This case concerned family reunification and whether there were exceptional circumstances in relation to the applicant’s application. Barr J. was satisfied that the decision should be set aside on a number of grounds.

89. It should be noted that the remarks above were made in a context where the decisionmaker had focused a considerable amount of attention on the issue of adoption. Indeed, Barr J. said at paragraph 75 that it was clear that the issue of adoption had “loomed large in the mind of the decision maker when reaching her decision in this case.” However, adoption had not been part of the applicant’s case, nor had it been raised in the first instance decision, and counsel for the Minister in N.I. conceded that it was an error.

90. A further argument was advanced by the applicant to the effect that the appeal decision was void because the appeals officer had not requested the applicant to take a DNA test to prove the existence of a biological relationship between the applicant and the sponsor, an option which was provided for under the Policy Document on Non-EEA Family Reunification.

91. Barr J. rejected this argument and said at paragraphs 69-70: “The onus rests on an applicant to put all material evidence before the decision maker. The lack of documentary evidence to establish a familial link between the applicant and the sponsor had been highlighted in the first instance decision. The applicant had been legally represented all along. If she or the sponsor had wanted a DNA test, they could have obtained one. It was not the fault of the respondent that such evidence was not put before the appeals officer.

The fact that the applicant subsequently obtained a positive DNA test, that established a familial link between her and the sponsor, cannot be used to vitiate the decision of the appeals officer. It is well established when examining the legality of a decision, the reviewing court can only have regard to the evidence that was before the decision maker. He or she cannot be faulted for not having regard to evidence that only came into existence subsequent to the date of their

decision: see Khan v. Minister for Justice & Law Reform [2017] IEHC 800; MK (Albania) v. Minister for Justice [2022] IESC 28; R v. Westminster City Council, ex parte Ermakov [1996] 2 AER 302.”

92. In relation to the part of the impugned decision headed “OB:- Obligations to return to home country have not been deemed sufficient”, counsel for the applicant was particularly critical and referred to the Supreme Court decision in Balz.

93. Balz was a case concerning the planning application process and guidelines relating to wind energy and therefore the factual background has no direct application here. The full passage from the judgment of O’Donnell J. (as he then was) in which the wellknown phrase, “administrative throat-clearing,” appears is at paragraph 47: “It is unsettling, for example, that when an issue arises where it is suggested that the inspector (and therefore the Board) has not given consideration to a particular matter, it should be met by the bare response that such consideration was given (for a limited purpose) and ‘nothing has been proven to the contrary’. Similarly, while the introductory statement in the Board's decision that it has considered everything it was obliged to consider, and nothing it was not permitted to consider, may charitably be dismissed as little more than administrative throat-clearing before proceeding to the substantive decision, it has an unfortunate tone, at once defensive and circular. If language is adopted to provide a carapace for the decision which makes it resistant to legal challenge, it may have the less desirable consequence of also repelling the understanding and comprehension which should be the object of any decision.”

94. Perhaps of even greater relevance to this case are the remarks of O’Donnell J. at paragraph 58 of his judgment: “…It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decisionmaking institutions if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.”

95. It is important to place the above remarks in context. The issue that arose in Balz related to the status of the then-applicable Wind Energy Development Guidelines 2006 (“the guidelines”). The applicant sought to argue before the planning inspector that the guidelines were out of date, inappropriate and not fit for purpose. The complaint in that case was that the inspector, having determined that the guidelines were in force, disregarded entirely the submissions made and materials adduced to support the argument that the guidelines were inappropriate in relation to the particular planning application. The report and approach of the inspector were adopted by the respondent.

96. The Supreme Court found that, on a close examination of the report, the inspector had treated the submission as irrelevant and effectively rejected it “in limine.” It held that this approach involved the exclusion of relevant considerations from the analysis of the weight to be given to the guidelines and that the balancing exercise required that the materials and submissions be addressed and, if rejected, that the rejection should be reasoned.

97. It is also clear from the judgment that the Supreme Court was unhappy with the way in which the essential factual dispute between the parties in the case had crystallised so late in the litigation. There was a lack of direct evidence in respect of how the inspector or the respondent had in fact treated the submission, which was described as “unsettling.” The respondent sought to argue on appeal that it could be inferred or deduced that the inspector had considered the submission, but this characterisation was rejected by the court.

98. Balz was also described by the Supreme Court as an example of the G.K. principle, not a reversal or variation of it, in Rana v. Minister for Justice [2024] IESC 46. O’Malley

J. held at paragraphs 92-93: “The decision of this Court in G.K. makes it clear that a statement by a decisionmaker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not. I do not see Balz as affecting this principle. The Inspector in Balz did not claim to have considered the scientific material before him – on the contrary, he stated that it was not a relevant consideration. The Board's general statement to the effect that it had considered what it should have considered, and had not considered matters that it should not, was hardly apt to cover a situation where the particular material had been seen by the Inspector as something that should not be taken into account. The appellant is, therefore, correct in saying that Balz is an example of the G.K. principle and not a reversal or variation of it.

I would therefore hold that it is not, in general, necessary to support a statement that all material has been considered with further evidence to prove the veracity of the statement. Such a statement differs materially from the statement condemned in Balz. This does not, of course, exclude the possibility of cases where a particular feature demonstrates that the statement is unlikely to be completely correct. The point is that decision-makers in this form of process are not required to list out everything that has been put before them and address each aspect individually.”

99. The applicant also relies on S in his criticism of this aspect of the respondent’s decision. This was also a case where a work permit was granted but a travel visa was refused. At paragraph 28 of her judgment, Bolger J. held: “Whilst brevity in a decision may well be praiseworthy, the recipient of a

decision is entitled to understand the decision and reasons for it such as to inform themselves whether and if so how it can and should be challenged; Connolly v An Bord Pleanala [2018] ILRM 483, approved more recently by the Supreme Court in Naisiunta Leictreach (NECI) v Labour Court [2021] IESC

36. The format of the decision at issue here rendered it very difficult for the applicant (and indeed for this Court) to understand why and on what basis the

decision was made… I follow the dicta of McDermott J. in T.A.R. (at para 24 and 25): ‘24. The shortness of the reasons given render it difficult for the court to understand the basis for the decision and, therefore, to exercise its jurisdiction as to whether the determination was unreasonable within the meaning of the Keegan test. There is no evidence available from the

decision-maker as to how or why the extensive evidence advanced on behalf of the applicants fell short of proof on the balance of probabilities that they would return home after their visit. Attempts to identify potential inadequacies that may have formed part of that decision highlight the lack of clarity in the reasons given and render it extremely difficult for the court to exercise its jurisdiction to determine whether the decision was unreasonable or irrational. In particular, it is not possible on the basis of the course of correspondence or the material submitted to ascertain from the course of dealing between the parties or the context in which the decision was made, what the shortcomings in proofs were and consequently, whether the conclusion reached in respect of the applicants was reasonable. I am, therefore, not satisfied that adequate reasons were furnished to the applicants in this case sufficient to enable the court to exercise its jurisdiction by way of judicial review. In making this determination, the court is not to be taken as condemning the use of a short form reason in such decisions as evidenced in the affidavit submitted by the Minister. The sheer volume of applications submitted for visas suggests that such an approach may well be prudent in most cases.

25. It is well established that the reasons given for a particular decision must be clear and cogent. They should give the applicants such information as is necessary to enable them to consider whether they have a reasonable chance of appeal or judicially reviewing the decision. The decisions should enable the applicants to arm themselves for such a hearing or review and understand whether the decision-maker had directed his mind adequately to the issue which he had to consider or was obliged to consider, and also to enable the courts to review the

decision. The Minister repeatedly emphasised that it was open to the applicants to reapply with additional evidence for a visa. However, in order to know how they might address any suggested deficiencies in their proofs, they would need to know how they fell short of establishing their case if they were to have any prospect of future success. In order to submit a further application, a more detailed explanation of the evidential shortfall would be required if the applicants were to have any prospect of establishing an intention to return home to the standard of probability required by the Minister. In that regard, the court should be circumspect about allowing material gaps in the decision to be filled by evidence or the submissions of counsel made on judicial review (see Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 453 and R. v. Westminster City Council [1996] 2 All. E.R. 302 per Hutchinson L.J. at pp. 309 and 312).’” (Emphasis added.)

100. The applicant places particular emphasis on the remarks of McDermott J. (repeated in S and underlined above) in T.A.R. v. Minister for Justice, Equality and Defence [2014] IEHC 385.

101. It can be seen in S that the applicant was actually interviewed during the first instance application process and that, at that stage, there was no request made of him to provide further documentation.

102. When the applicant appealed, he took issue with the finding that insufficient documentation had been provided without any detail as to what documentation was missing. He asked, through his solicitor, what further documents were required and if anything else needed to be provided by him. None of the replies to the correspondence from the applicant’s solicitor clarified what documentation was missing. The appeal

decision refusing the application also did not state what documentation was missing from the application.

103. Bolger J. held that it was unreasonable for the decision-maker to dismiss two work references on the basis of an inability to check them in circumstances where the references contained mobile telephone numbers and no explanation was given by the Minister as to why they were not checked.

104. The appeal decision in S also involved a conclusion that the Minister was not satisfied that the applicant would observe the conditions of the visa. Bolger J. criticised the failure of the Minister to provide reasons or an explanation for this conclusion.

105. While accepting the proposition that where there is a broad and general discretion, reasons may also be broad and general, even this standard was not satisfied where there was nothing at all said to explain why the applicant had not satisfied the decision-maker that the conditions of the visa would be observed.

106. The failure to give reasons, to rationalise the findings and to give proper consideration to the documents submitted resulted in an appeal decision that was determined to be legally flawed, and an order of certiorari was granted.

107. In the course of the hearing, counsel for the applicant brought two further decisions to the attention of the Court, which were not referred to in the written submissions.

108. Masood v. Minister for Justice [2025] IEHC 485 was another case concerned with the refusal of an appeal in relation to an employment visa. Again, part of the impugned reasoning was a conclusion that information provided by the applicant could not be verified.

109. A letter from the applicant’s employer had been provided. The respondent’s decision stated that “it is noted that this letter has a Pakistani phone contact number and no business email. This is insufficient to verify the information provided.”

110. The court observed that the letter, which confirmed details of the applicant’s employment, included the restaurant registration and license number, postal address, email (‘Gmail’) address, WhatsApp number and land-line number, and concluded by stating “[i]f you have any question regarding this ref letter please contact us.”

111. On the verification issue, Phelan J. said at paragraph 33: “The impugned decision states that a Pakistani phone contact number and the lack of a business email address were ‘insufficient to verify the information provided’, and I am at a loss to understand what ‘verify’ means, other than for a visa official to actually pick up the phone or send a letter or email to the applicant’s employer, with the aim of confirming the truth of that which was stated in the letter from the said employer. To ‘verify’ is, according to the Collins Online English Dictionary, to ‘check something is true by careful examination and investigation’. Further, according to the Oxford English Dictionary, in its general use, to ‘verify’ is ‘to testify to, to assert, to affirm or confirm, as true or certain’, or secondarily, ‘to show to be true by demonstration or evidence; to confirm the truth or authenticity of; to substantiate’ or ‘to establish by investigation’. Thus, there is an obligation on the decision-maker to take the necessary steps to ‘verify’ (by way of, for example, checking, investigating or confirming) and there is no evidence that the decision-maker took the necessary

– or indeed any – steps in this case.”

112. She found that it was unreasonable and/or irrational for the decision-maker to conclude, without more, that the letter provided by the applicant’s employer was “insufficient to verify the information provided.”

113. The respondent’s decision in Masood also criticised the applicant in relation to both the documentation provided and the failure to provide further documentation. The applicant’s solicitor had pointed out that certain documentation in the form of tax records and bank accounts was simply not available and, by extension, never would be. Phelan J. concluded that the respondent had either ignored these representations or did not properly consider them and that, in failing to consider the particular circumstances of the applicant, the respondent had acted irrationally and/or arbitrarily.

114. The respondent’s decision in Masood also contained an adverse finding in relation to observing the conditions of the visa in the following terms: “Information supplied by you concerning your personal, economic and family circumstances has been insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted.” This formulation was described by Phelan J. as “bland in the extreme.”

115. She further said that there was nothing recorded to enlighten the applicant as to why his visa was being refused on this basis. In this regard, she referred to the Court of Appeal

decision in A.A. and said at paragraph 80: “That is not to say that the reasons provided by the decision-maker need to be as precise or detailed as would be expected of a tribunal or other body exercising a statutory power, particularly if the exercise of that power resulted in making a decision which affected a person’s rights (see AA, at §44) – and I accept that the granting of an employment visa does not engage substantive rights – but, in line with the decision of the Court of Appeal in AA, at §45 in acknowledging that ‘a significant amount of deference must be afforded to the

decision maker’, such deference pre-supposes that ‘a decision-maker will have provided a reason or reasons for the decision that, in the first place, are easily discernible and comprehensible’. No such easily discernible and comprehensible reasons were provided in this case.”

116. Phelan J. ultimately granted an order of certiorari quashing the respondent’s decision.

117. The second decision referred to in oral submissions was Raza v. The Minister for Justice [2025] IEHC 475. I was informed that this decision is under appeal.

118. The applicant submits that there are strong parallels between his case and the circumstances outlined in Raza.

119. The applicant in that case was a Pakistani national that had obtained a general employment permit from the Department of Enterprise, Trade and Employment to work as a chef de partie under the Employment Permits Act 2006. He then applied for a longstay visa to reside and enter into employment in the State.

120. He was subsequently refused this visa, primarily on the basis that insufficient documentation had been submitted in support of his application. It was also stated that he had failed to prove that he would observe the conditions of the visa. The applicant appealed and, for the purposes of his appeal, his solicitor submitted a number of responses to the issues raised at first instance. The refusal was upheld on appeal, giving rise to the application for judicial review.

121. Importantly, in circumstances where the applicant had no formal qualifications as a chef, the respondent found that he had provided insufficient documentation in support of the application and that there was insufficient evidence submitted to demonstrate that he had the relevant qualifications/employment experience to undertake his proposed employment in the State. The respondent noted that the applicant had failed to provide any training/qualification certificates.

122. Having considered the authorities, referred to above, in relation to the relevance of being granted a work permit and whether this had been considered by the decisionmaker, Barr J. held at paragraphs 53-55: “In the present case, the respondent did not mention the grant of the employment permit at all. It was a relevant document that was before the respondent. It established that another Minister was satisfied on the documents that had been submitted, that there was a shortage of labour in a particular segment of the market, being the sector of chef de partie in a kebab restaurant in the Moate area. In granting the employment permit it was clear that DETE accepted that there was a shortage in that sector in that location, such that the Irish employer could not find a suitably qualified Irish or EU qualified citizen who could do that work. DETE was also satisfied that the applicant had the skills required to fill the position.

It is hard to see how that was not ignored when it was not mentioned by the respondent one way or the other. I accept the applicant's submission that as it was not mentioned, it is probable that it was in fact ignored. It is not saved by a formulaic statement at the start of the decision that all documents had been taken into consideration by the decision-maker on the appeal. There is not a scintilla of evidence in the decision that it was taken into consideration by the respondent. Accordingly, I find as a fact that it was ignored by the decisionmaker.

I also accept the submission made by counsel for the applicant that no account seems to have been taken of the fact that a restaurant owner in Ireland was satisfied that the applicant was suitably skilled or experienced to work in his restaurant as a chef de partie.”

123. In finding that the respondent had fallen into error in failing to take into account a relevant matter, Barr J. referred to the fact that no weight appeared to have been given to the fact that the Irish employer had arranged accommodation for the applicant on his arrival in Ireland. He also referred to the relevance of the relatively low level of skill required for the role of a chef de partie.

124. A credibility issue arose in that case out of a discrepancy in the documentation that suggested that the applicant had been simultaneously in employment and in school during a certain period of time. The respondent also questioned the credibility of the applicant’s claim that he was employed as a chef de partie in a hotel as a 19-year-old with very limited experience.

125. In this regard, where the alleged contradictions/inconsistencies arose on appeal, Barr J. held at paragraph 65: “The alleged contradictions were not glaring ones. Fairness dictates that when the respondent felt that inconsistencies were significant and when they could well be susceptible of explanation, the applicant should have been given some opportunity to explain them.”

126. In relation to the ground for refusal concerning the failure to observe conditions attached to the visa, Barr J. noted that the decision-maker was concerned that the applicant’s personal and economic circumstances were insufficient to satisfy the

decision-maker that the conditions attached to the visa would be observed, with particular regard to the use of public funds/public resources and the possible risk of overstaying the visa. He observed that the decision-maker also stated that a further reasonable concern was that if the applicant were granted a visa, he may seek to change or vary his permission to remain.

127. Barr J. held at paragraph 72: “Where a refusal of a visa application is going to be based on some fear of a prospective breach by the applicant of the terms of his visa conditions, there needs to be some credible basis for holding such opinion. Otherwise, this ground of refusal amounts to no more than a bald assertion: ‘I think you will breach the conditions of your visa, therefore, I am going to refuse to give you one’. It cannot be plausibly argued that such an arbitrary reason could be a valid ground on which to refuse a visa to an applicant who is otherwise qualified to get one.”

128. Barr J. found that the respondent had also ignored other relevant factors such as the fact that the applicant had applied for a long-stay visa as opposed to a short-term visa and that he had an offer of paid employment.

129. In reaching that conclusion, Barr J. referred to Mukovska, where one of the bases for quashing the Minister’s decision was the failure to give any adequate reasons as to why it was contended that the applicant would not obey the conditions attached to the visa.

130. In Mukovska, Hunt J. made the following observations at paragraphs 62-64: “…Individualised reasons or a response that contains extensive reference to documentation submitted in support of an application will not be necessary to adequately explain most visa refusals, and recourse to a bank of standard reasons will be appropriate. This bank will have developed over time, and the phrasing will reflect considerable departmental experience as to the accumulated reasons for refusal of such applications. It is also necessary to consider from time to time, whether, in the light of experience, and the context of the information available to applicants, the existing stock of standard reasons requires addition or amendment.

Where the Minister provides reasons for the refusal of an application, there will inevitably be a small number of cases where either the facts or the documents concerning an application are such that one or more of the suite of standard reasons will not adequately explain a refusal. This case involved an appeal where voluminous and detailed information was marshalled and submitted to meet the first instance refusal. The context, the standard reasons proffered and the other information available to the appellant did not suffice to discharge the obligation on the decision-maker to act fairly and rationally by providing reasons which accurately conveyed the essential rationale behind the decision made. If a stock reason is not adequate to the task, an additional or an amended sentence or two will suffice. In this context, no more is required than basic and general compliance with the ‘essential rationale’ requirement.

It is also necessary to state that this judgment does not purport to step into the Minister's shoes, to dictate or substitute the outcome of sensitive immigration decisions, or to say that the Minister could never use a restrictive definition of ‘need’ as the essential rationale for the grant or refusal of a long-stay study visa. The wide discretion conferred on the Minister clearly permits that approach. Whether that approach has been adhered to consistently in the past is not a matter that is for decision here. Furthermore, it does not require that reasons for refusal in such cases should be parsed as if a statutory provision, be lengthy, elaborate or couched in complex language, or refer to other material submitted. All that is required is meaningful communication of the essential rationale of the decision. That should be both concise and accurate. It endorses the use of concise, standard-form reasons where appropriate. It encourages ongoing review of the formulation of such reasons, which can be expanded or amended in the light of experience.”

Application of Principles and Decision

131. In the first instance, I am satisfied that the ‘pleading point’ taken by the respondent in relation to the ‘OB’ ground for refusal must fail. It is clear to me that the totality of the

decision was challenged by the applicant. The grounding affidavit of the applicant clearly addresses this aspect of the refusal, and specifically complains of a “copy and paste” reasoning and a failure to address the information provided by the applicant to deal with that issue on appeal. It also appears to me that the grounds advanced at paragraph (e) of the statement of grounds reflect those complaints.

132. It may, therefore, be convenient to examine this ground of refusal first.

133. It can be seen from the part of the appeal decision related to the ‘OB’ ground for refusal that the only expressed difference in approach from the first instance decision is the inclusion of additional wording in the following terms: “with particular regard to the use of public funds/public resources, and the possible risk of overstaying in the State.” Insofar as any meaning can be ascribed to those words in this context, they do not appear to add anything to the underlying rationale.

134. In addressing this aspect of the decision on appeal, the applicant’s solicitor made a submission that relied on the following:

• The work permit and the fact that the applicant could not work anywhere else;

• The full-time nature of the employment;

• The fact that the applicant’s employer was covering the cost of accommodation;

• The fact that the applicant was married with three young children, all of whom reside in Pakistan (a marriage certificate, a family registration certificate and birth certificates had been provided in this regard);

• The applicant’s strong ties with Pakistan; and

• The fact that he had additional support from a brother-in-law in residence in Ireland.

135. The applicant also provided an affidavit in relation to his family circumstances, and undertook to abide by the conditions of any visa and to make arrangements to travel back to Pakistan when his work permit was nearing its expiry date.

136. Not one of these factors is so much as referred to under the ‘OB’ heading of the refusal. It must be acknowledged that the written decision opens with the words “the Appeals Officer has taken all the documentation and information submitted with the original application and appeal into consideration.”

137. However, the operative part of the decision under this heading cannot give one any confidence that this is so. The expressed rationale could apply in any case, and there is nothing contained therein that appears specifically referable to this applicant and his application. The additional words add nothing beyond identifying, in generic terms, the nature of the perceived risk of overstaying a visa and an interest of the State to which that risk is connected.

138. It seems to me that the rationale for this part of the decision is in the “bald assertion” category condemned in Mukovska, S and Raza. While the respondent is not in any way bound to accept any of the matters urged on behalf of the applicant, nor can it be expected that a lengthy or detailed treatment of these matters be included in the

decision, the applicant should be in a position to identify, at least in general or basic terms, how or why he has fallen short.

139. It is not at all clear to me whether any or all of the matters urged were rejected, or whether they were even considered at all. There is no meaningful communication of the essential rationale for the decision in the sense contemplated in Mukovska. Some brief, or even perfunctory, expression of the basis for rejection might be expected in these circumstances, but the decision is completely silent. There is nothing in the

decision to indicate what the decision-maker has addressed his mind to and what has been accepted and/or rejected, which makes the process of informed review impossible.

140. When counsel for the applicant submits that he is “none the wiser” post-appeal as to the basis for the respondent’s rejection of his submission, if that is what it was, it is difficult to disagree. The position here is all the more stark where, in another part of the

decision, the respondent expressly refers to the first instance decision and a purported failure by the applicant to adequately deal with an issue raised.

141. It is also of no comfort to the applicant to be told that he can initiate another application. In circumstances where he is deprived of an opportunity to identify where he has fallen short, his assessment of the practicalities or merits of any fresh application is considerably handicapped.

142. This part of the decision is expressed in terms which, in my view, can be correctly described as arbitrary, irrational and/or unreasonable.

143. There are a number of different limbs to the part of the decision headed “ID:- Insufficient documentation submitted in support of the application.” I note that immediately after this heading, the reader is directly referred to the ‘Documents Required’ section of the respondent’s website.

144. A substantial difference between the parties concerns the way in which the first two bullet points are to be interpreted.

145. Counsel for the applicant submits that these two aspects of the decision were “conflated”, both at first instance and on appeal. In developing this argument, he says that the decision on appeal is to be read as a finding of insufficient evidence in relation to the applicant’s qualifications and experience and that the following paragraph is a particularisation, or “fleshing out”, of that decision.

146. Counsel for the applicant submits that the respondent is now incorrectly trying to “disaggregate” these elements of the decision.

147. Counsel for the respondent submits that these are in fact separate and stand-alone conclusions and rejects the suggestion that there has been any change in the respondent’s rationale for refusal.

148. It seems to me that the appropriate way in which to approach this question is to give the words their ordinary meaning in the overall context in which they feature in the

decision, rather than to closely parse the wording or adopt an artificially technical analysis.

149. The first bullet point is expressed in the following terms: “insufficient evidence submitted to demonstrate that you have the relevant qualifications or experience to undertake your proposed employment in the State.” I note that identical wording is used in both the decision at first instance and on appeal.

150. The first instance decision then continues: “the experience certificate from [the meat shop] …”

151. The appeal decision continues: “it is noted that you have submitted an experience letter from [the meat shop] …”

152. I am of the view that in both instances, the second paragraph represents an expression of the rationale for the actual decision in the first paragraph. These narrative passages are thematically connected to the issue of qualifications/experience and it would be artificial to look at them as separate or disconnected from the first paragraph.

153. Moreover, if the approach was taken to look at the paragraphs on a completely standalone basis, the decision that “insufficient evidence submitted to demonstrate that you have the relevant qualifications or experience to undertake your proposed employment in the State” would amount to a bald statement, devoid of any reasoning, and could be challenged on that basis.

154. The applicant complains that, for the purposes of his appeal, he engaged with the expressed rationale for refusal and provided further information in that regard. He submits that the respondent reached a decision on appeal on a materially different basis that was unfair to him and that he was deprived of an opportunity to address it.

155. The first instance decision appeared to turn on the experience certificate being “insufficient proof of previous employment”, the absence of payslips or evidence of payment and the lack of contact details which prevented the Visa Officer from being able to “verify” the contents of the certificate.

156. The applicant’s solicitor wrote to the respondent on the 6th of March 2023 stating that they wished to address the reasons for refusal seriatim. Under this heading, they provided a further experience certificate from the meat shop dated the 13th of February 2023.

157. This certificate explained the history of cash payments as a feature of employment in Pakistan, which seems to have been accepted by the respondent, and stated that the applicant was employed as a meat cutter for over two years. The certificate was signed by a Head of Department and contained a contact telephone number.

158. Importantly, given the finding that it was not possible for the Visa Officer to verify the contents of the original certificate, the solicitor wrote “we would encourage your offices to contact with [the meat shop] and confirm the content of this employer letter.” Not unreasonably, the focus of the solicitor was on the question of verification and establishing the fact of the applicant’s employment.

159. The appeal decision makes no mention of an inability to verify or whether any steps were ever taken in that regard. Curiously, it refers to the experience that the applicant apparently had working as a meat cutter in completely neutral terms. While the respondent does not expressly say that this is accepted, it is certainly not expressly rejected. This can only be interpreted as an acceptance of the fact of the applicant’s employment in the meat shop.

160. The appeal decision then goes on to quote from the first instance decision in respect of insufficient evidence having been submitted in relation to qualifications or experience and stated that the opportunity to address this in the appeal had not been taken by the applicant. The decision states that this: “…was mentioned at first instance and that you had the opportunity to address this in your appeal (e.g. letter from [the meat shop] further detailing your role in the company, training/course certificates in the area, etc) yet no new documentary evidence as such has been submitted.”

161. I accept the argument that this approach does visit an unfairness on the applicant. Having established that he had worked in the meat shop for over two years, the respondent’s position shifted to one where the application was regarded as deficient on the basis that the applicant had not acquired the necessary qualifications or experience while working for the company. This is the kind of unfairness identified by Barr J. in N.I.

162. It is well-established that one of the principles behind the requirement for giving reasons is to allow for a rational analysis and meaningful assessment of the prospects of an appeal, and a meaningful engagement with that process if undertaken.

163. There is a relationship between the impugned decision and the decision at first instance. The change in emphasis here, under the same heading, is quite clear.

164. The applicant is criticised on the basis that “no new documentary evidence as such” has been submitted, which does not adequately reflect the fact that new documentary evidence had been submitted by him that directly dealt with the concerns and rationale expressed at first instance.

165. The applicant concedes, at a level of principle, that the respondent is not constrained to the reasons given at first instance. Indeed, counsel for the applicant accepted that the process between first instance and appeal can evolve as more information is submitted or comes to light. However, constitutional fairness requires that, at all times, the applicant must be given an opportunity to address the substantive matters of concern.

166. I also note that the applicant intended to work in this jurisdiction under a general employment permit and not a critical skills employment permit. The respondent was provided with a letter from his prospective employer which stated that they were ready for him to start work immediately as a general operative. I am concerned that while this fact does not appear to be disputed, it is unclear from the face of the impugned decision how it was assessed.

167. The fact that the applicant had been granted a work permit is acknowledged in the respondent’s decision. However, this is referred to in a generic way together with quotations of well-established principles as set out in previous decisions of this Court.

168. It seems clear that the work to be performed by the applicant was not particularly skilled work. I am of the view that the grant of the permit by the Minister for Enterprise, the nature of the work to be undertaken by the applicant and the acceptance by the prospective employer of his ability to do the work all underscore the unfairness of the shift in position by the respondent. These were all factors that the applicant could have made submissions on if afforded the opportunity.

169. The remaining basis for refusal in the impugned decision relates to the accommodation plan. It is common case that the only reference to accommodation in the respondent’s published guidelines on their website is a requirement to provide “details of the accommodation, if the employer is providing you with accommodation.”

170. Before turning to an examination of this ground for refusal, it is necessary to refer to Ms. Brennan’s affidavit. The applicant complains that the affidavit refers to matters extrinsic to the rationale of the actual decision-maker. Ms. Brennan is a Higher Executive Officer in the Department of Justice, and it is acknowledged that while she may have reviewed the records within the department, she was not involved in the making of the actual decision.

171. Amongst other things, Ms. Brennan refers to the applicant’s contract of employment which does not make reference to the provision of accommodation. She refers to a letter written by the applicant’s sister-in-law, wherein she says that she wishes “to take in” the applicant, as a basis for saying that it was objectively unclear as to who would be providing the accommodation. She also refers to a “standard practice” for longer term visa applicants to require proof that a contract for accommodation is in place.

172. I am satisfied that while Ms. Brennan’s affidavit can be relied upon for context and elucidation of generalities, it cannot be used to supplement, amend or correct the basis for the actual decision in the application. See City of Waterford VEC v. Department of Education and Science [2011] IEHC 278.

173. The stated basis for refusal under the accommodation heading appears to involve two elements. Firstly, a failure to show that a contract for accommodation is in place and, secondly, that “no evidence” has been provided in support of the statement that accommodation is being paid for by the prospective employer.

174. At first instance, the applicant provided a letter from an established auctioneer that he would be taking up residence at a particular address in County Mayo. At that stage, while the letter from his prospective employer said that they were ready to provide assistance to him, it was silent on the question of accommodation. The first instance

decision referred to insufficient detail to show that a contract was in place, and that it was “not clear who is financing your proposed stay at the property.”

175. For the purposes of his appeal, the applicant submitted a letter from his prospective employer which, in addition to dealing with employment and rates of pay, said: “on arrival we have arranged with [the auctioneer] to have and hold suitable accommodation which he has confirmed is in place and is being paid for by the company. If the company can assist with any more information, please contact me at…” This letter is signed by the company’s Human Resources Manager.

176. One of the points emphasised at the hearing by counsel for the applicant was that at no point was the validity of any of the evidence provided by the applicant impugned or questioned by the respondent.

177. It is difficult to see the basis on which the respondent could say that there is “no evidence” in support of the statement that accommodation is available and being paid for by the employer. The letter referred to is the evidence. The respondent is entitled to reject or disbelieve that evidence or to prefer other evidence but to say that there is no evidence, when evidence has been submitted to deal with the very concern raised, is in my view an irrational approach.

178. I am further of the view that this irrationality contaminates the entire decision under this heading, and I would not be prepared to sever this part of the reasoning from the

decision on the basis that the respondent asserts that the applicant had not shown that a “contract was in place.”

179. However, for completeness, I observe that it is still unclear to me what the respondent requires in this regard. I do not know whether the respondent requires some form of executed lease or similar document. The respondent’s own guidelines simply require “details of the accommodation.” The letter referred to above prima facie establishes an agreement with the applicant where the employer is sourcing, arranging and paying for accommodation.

180. While having due regard to the deference that must be shown to the decision-maker, to disregard this evidence while imposing a requirement on the applicant to show that a contract is in place, a requirement that is not to be found in the respondent’s own guidelines, is in my view unreasonable and irrational.

181. For all of the above reasons, I propose to make an order quashing the impugned decision made by the respondent on the 12th of March 2024. I do not propose to make an order remitting the matter for further consideration.

182. Having regard to the provisions of section 169 of the Legal Services Regulation Act 2015 which provide that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, my preliminary view is that the applicant is entitled to an order for his costs.

183. If the respondent wishes to contend for a different order, the Court and the applicant should be informed within two weeks of today’s date. The matter can then be relisted for hearing on that issue. If that is not required, an order for costs will be perfected in two weeks hence.