• Aaron Flynn

High Court confirms holders of Stamp 4 permission can be granted an Employment Permit

Updated: Mar 9

Mr Justice Anthony Barr has confirmed the Department of Business, Enterprise and Innovation ('the DBEI') was wrong to refuse an employment permit to an applicant who held a Stamp 4 (long term residence permission).



In Hossain -v- The Minister for business Enterprise and Innovation [2021] IEHC 152 the applicant had applied for an employment permit as his Stamp 4 permission was about to expire as the permission was based on the EU Citizenship of his wife. His marriage had since broken down and his spouse had left the jurisdiction. The DBEI refused the permit and rejected a review application indicating 'current holder[s] of an extant Stamp 4 permission, which of itself gives him a right to work in the State, the respondent simply does not have jurisdiction to grant an employment permit...'


Judge Barr held:


'The court is satisfied that on the ordinary and natural meaning of the words set out in

s.2(10)(d) the provision merely relieves the person who holds the appropriate permission,

such as a Stamp 4, from the requirement to hold an employment permit when working in

the State. All the subsection does is to exclude the foreign national from the requirement

in s.2(1) to hold an employment permit and by extension, that means that the foreign

national and his employer do not commit an offence provided for under the section, when

he or she enters into employment without holding an employment permit, as would

ordinarily be required under s.2(1) of the Act. The court is satisfied that on a proper

construction of sub-s.2(10)(d), it does not exclude or prevent the Minister from issuing a

work permit to an applicant, solely on the basis that that applicant already has a

permission to work by virtue of the immigration permission which he or she holds.'


[Emphasis added]


And:


'The court is satisfied that there is nothing in the Acts or in the regulations, which

explicitly prohibit the Minister from issuing an employment permit to a foreign national,

who already has a right to work by virtue of his or her immigration permission. '


Analysis


The DBEI have long since adopted the view that they cannot grant an employment permit to the holder of a Stamp 4 permission. This has led to extremely difficult if not impossible circumstances for applicants as they must first have their Stamp 4 permission withdrawn before applying for an employment permit. However an applicant for an employment permit must have a current permission to be in the State at the time of application for the employment permit and INIS do not tend to grant permissions at revocation of Stamp 4 to allow for an employment permit application. This often requires the applicant leave the State and then if visa required apply for a visa to return to Ireland once the employment permit is approved. It is hugely inconvenient for applicants who are attempting to comply with their legal obligations to follow this process.


This judgment will be of huge assistance and benefit to those people previously caught by this blanket refusal to consider an application for an employment permit. The judgment should ensure that applicants remain capable of continuing in their employment without the need to either leave the State or fall into lack of immigration permission.


 
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©2019 by Aaron Flynn Solicitors.