Clarifying discretionary authority, High Court reverses employment permit denial

IMPACT – MEDIUM

The High Court in Ireland has quashed a decision by the Minister of Business, Enterprise and Innovation to deny the renewal of an employment permit outright on the grounds that the foreign employee was technically not in immigration status when he applied and that his salary did not appear to meet the minimum threshold, without first considering the employer’s evidence contradicting the shortcomings.

Key points:

• While the Employment Permits Act confers a discretionary power on the minister to refuse to grant an employment permit, the court said that the discretionary power puts a duty on her to “consider the individual facts of each case as they arise.”
• The minister’s duty to act fairly in exercising her discretionary powers includes an obligation to engage with and consider the explanation offered by the applicant for noncompliance with the terms of the previous permit.
• The minister’s failure to engage in any meaningful way with the explanation offered by the applicant or to give any reasons as to why it was not acceptable renders the decision to deny the employment permit fatally flawed.

Background: The applicant, a Malaysian national, held an employment permit for several years as a chef and sought to renew it. The restaurant that employed him was eight days late in applying, so he technically had a lapse in immigration permission. Additionally, the salary slips did not match the terms of his previous employment permit. For those two reasons, the minister said that an employment permit “cannot issue” and denied the renewal. The employer argued that the application had been timely filed and that the employee was paid correctly but that his pay slips were delayed in being updated because the owner of the restaurant was out of the country for a family funeral.

The High Court ruled that the minister is required by the Employment Permits Act to consider the reasons given by the employer and provide a rationale for her decision if the reasons were insufficient. Previous Supreme Court judgments “make clear that public bodies exercising discretionary powers which affect the rights of individuals are required to give reasons for exercising the power in a particular way so that the party affected may understand the rationale for the decision and if necessary challenge it,” the High Court said.

The full decision in Ling and Yip Limited v. The Minister for Business Enterprise and Innovation may be viewed here.

Analysis & Comments: The judgment is important in confirming that the Department of Business, Enterprise and Innovation is legally obligated to consider evidence even if the applicant’s case on its face appears not to meet the criteria. In refusing an application, the DBEI normally may not go into detail about specific evidence provided. This judgment follows a line of authority in Irish administrative decisions that there is an obligation to provide reasons for the decision. While the judgment may not affect most clients, it will assist in providing confidence that evidence and relevant information provided in an employment permit application and appeal will be taken into account and that reasons will be provided for the ultimate decision.

Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.