The Irish High Court has quashed a decision by the Minister for Business, Enterprise and Innovation, to refuse consideration of an application for work permit for a non-EU national. The Minister had refused to consider the application as the applicant already had the right to work in Ireland.
The applicant was separated from his wife, an EU national, and his permission to remain and work in Ireland was to expire. The Minister stated that an employment permit could not be granted to a person who already had permission to work. The Court did not agree with the decision and held that there was nothing in legislation which would prevent the Minister from considering the application.
The applicant, a Bangladesh national, had married his wife, a UK national. They moved to Ireland and the applicant was granted a Stamp 4 on the basis of his marriage to an EU national. The Stamp 4 granted him permission to live and work in Ireland. The permission is to expire in November 2021. The applicant and his wife later separated and his wife returned to the UK and filed for divorce. The applicant informed the Irish Naturalisation and Immigrations Service of the change in his circumstances and applied for a work permit.
The applicant had been working since his arrival in Ireland and he received a further two year contract. The Minister refused the employment permit on the basis that the work permit could not be considered as the applicant already had Stamp 4 permission, which granted him the right to work in Ireland.
The applicant claimed that as his Stamp 4 permission was due to expire in November 2021, he required an employment permit to remain in Ireland. If the applicant was to wait until his Stamp 4 permission expired to apply for an employment permit, then he would be in the State unlawfully while waiting for the decision from the Minister.
The Minister argued that due to Section 2(10)(d) of the Employment Permits Act 2003 (as amended) the Minister could not consider the applicant’s employment permit application as the Act prevented the applicant from making an application under the employment permit scheme.
The High Court concluded that the Employment Permits Act 2003 Act did not preclude the applicant from making an employment permit application. The High Court stated that Section 2(10)(d) did not prevent the Minister from granting an employment permit to the applicant on the basis that the applicant held Stamp 4 permission. The Court held that ‘it was incumbent on the Minister to adopt a pragmatic and reasonable approach to an application submitted in such circumstances’.
Click here for the judgement.