Tag Archive for: work permit

NEW VISA REQUIREMENTS ANNOUNCED FOR NATIONALS OF BOTSWANA AND SOUTH AFRICA

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “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.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

HIGH COURT DECISION ON REFUSAL OF EMPLOYMENT PERMIT FOR TRAINEE ACCOUNTANT

On 25th March 2020, Mr Justice Heslin delivered his judgment in Julia Olivera Rodriguez v The Minister for Business, Enterprise and Innovation.

This case concerned a Venezuelan national with a BSc. Degree in Public Accounting from Venezuela and a Certificate in Business Accounting which she obtained in Ireland through the Chartered Institute of Management Accountants in May 2018.

Ms Rodriguez’s application for an Employment Permit for the role of Trainee Accountant was refused by the Minister for Business, Enterprise and Innovation on the basis that the position of Trainee Accountant does not fall within the list of eligible categories of employment, as set out in the Employment Permits Regulations, 2017.

Ms Rodriguez challenged this decision in the High Court, arguing that the Minister had been incorrect in this finding and that the role of ‘Accountant’ should be interpreted to include those training for the position, as is the case in the UK.

Mr Justice Heslin in his decision stated:

“I am entirely satisfied that the 2017 Regulations cannot be interpreted in the manner in which the applicant contends. Doing so would involve this Court importing into the 2017 Regulations words which are simply not there and also ignoring the plain meaning of words which incontrovertibly appear in the 2017 Regulations.”

Mr Justice Heslin stated that the regulations very clearly set out employments of which there is a shortage and which are required for the proper functioning of the economy, including Accountants and Tax Consultants with particular specialisms and specified experience:

“Schedule 3 of the 2017 Regulations very clearly sets out those employments in respect of which there is a shortage in relation to “qualifications, experience or skills” required for the proper functioning of the economy and these include “Chartered and Certified Accountants” with particular specialisms, “Qualified Accountants” with particular experience and “Tax Consultants” with specified experience. As a matter of fact, the applicant falls into none of the categories specified in Schedule 3. For this Court to hold that she does, would be to do violence to the specific words used in Schedule 3 and would amount to this Court deciding, impermissibly, that someone who is unqualified comes within a category which explicitly addresses shortages in “qualifications”. This Court has no power to ignore the clear wording in Schedule 3 of the 2017 Regulations and to hold that shortages in the qualifications set out in Schedule 3 are met by unqualified persons.”

The court found that Ms Rodriguez does not fall within any of these categories and the decision to refuse her application for an Employment Permit was upheld.

The full text of the judgment can be found here.

If you would like more information on the application process for Employment Permits in Ireland, please do not hesitate to contact our office.