• Aaron Flynn

Judicial review of refusal for Employment Permit for Trainee Accountant refused by High Court

In the recent decision of Judge Heslin in Rodriguez v Minister for Business, Enterprise and Innovation [2020] IEHC 174 a challenge was made to the refusal of a General Employment Permit application.

The applicant Ms Rodriguez is a Venezuelan national who holds a BSc. Degree in public accounting which she obtained in Venezuela and a certificate in business accounting which she obtained in Ireland through CIMA (Chartered Institute of Management Accountants) and which she obtained in May 2018.

The applicant sought to quash a decision to refuse her an Employment Permit in respect of the position of “Trainee Accountant”. An earlier decision to refuse was followed by a statutory review (as is the procedure in Ireland). It is the latter decision which the applicant challenged.

The central aspect of the applicant’s case was that the position of “Trainee Accountant” was incorrectly categorised by the respondent under SOC Code 4122 rather than under 2421. In challenging the respondent’s decision, the applicant accepts that all the relevant job details provided were considered by the respondent and it is not alleged that the conclusion reached by the respondent was irrational. The applicant submits that the respondent erred in law when the respondent determined that the Trainee Accountant position was categorised Code 4122, rather than 2421 and asserts that the respondent failed to have regard to categorisation rules pertaining to SOC 2010. In advancing her case the applicant relies on certain statements from the respondent’s website as well as “volume 2” of the “SOC 2010” as produced by the UK Office for National Statistics (“UK NSO”) in addition to statements by the UK NSO in a letter dated 19 July 2019.

Judge Heslin was satisfied that , as a matter of fact, there is no explicit provision in the 2017 Regulations (S.I. No. 95/2017 - Employment Permits Regulations 2017) pursuant to which the entirety of SOC 2010 is adopted. Further Judge Heslin was satisfied that there is no provision in the 2017 Regulations which states that SOC 2010 as applied in the United Kingdom is binding in respect of applications for work permits brought in this jurisdiction pursuant to the 2017 Regulations.

The applicant it transpired had made an earlier application for an employment permit for the role of "assistant accountant" which was found not relevant to the present application under challenge. The respondent did aver to the existence of a visa permit specifically for full–time paid accountancy trainees (Stamp 1A)” and that“new rules effective from July 2019 as regards trainee accountants”. The respondent wrote to the applicant in relation to the foregoing and invited her to withdraw the legal proceedings but the applicant declined to do.

Judge Heslin goes on to consider the decision in Omotayo Mobolaji Olaneye v. The Minister for Business, Enterprise and Innovation[2019] IEHC 553 which I reported on earlier and stated:

" I am satisfied that it is not authority for the proposition that the 2017 Regulations imported the entirety of SOC 2010 or that the 2017 Regulations comprise the “SOC 2010 volume 2”, as maintained or applied by the UK NSO. I am satisfied that Olaneye is not authority for the proposition that the Minister is in any way bound to interpret either the 2006 Act or the 2017 Regulations in accordance with such opinion or determination as the UK ONS may make with regard to SOC 2010 as maintained or operated in the United Kingdom by the UK ONS."

In reviewing the law Judge Heslin looked at Schedule 3 of the 2017 Regulations which 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. The applicant in this case was not so qualified.

This case shows that the UK SOC system though a useful guide for Irish Employment Permits is just that: a guide and that the Minister for Business, Enterprise and Innovation considers applications subject to their own guidance and has a discretion to grant an employment permit.

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