There are a number of reasons arising from the Employment Permits Acts whereby the Minister can refuse a work permit.
One such reason is that the foreign national came into Ireland or is in Ireland without immigration permission when the work permit application was made.
Work Permit Refusal
If a person makes an application for a work permit which is refused, they can seek to have the Decision reviewed ie appealed within a short timeframe.
The legislation states under S.12 of the Employment Permits Act 2006, that the Minister may refuse to grant a work permit for the set out reasons, one of them being that the person had no immigration permission to be in Ireland or land in Ireland.
The word may means the Minister has discretion to refuse or not refuse for the established reasons in the legislation.
There might be a justifiable reason as to why the person had no existing immigration permission at the time the work permit application was made.
In a recent case before the High Court it was stated:
S. 12(1)(i) of the Employment Act 2006 (as amended) grants the Minister discretion to issue an employment permit notwithstanding the Applicant’s presence in the State without an immigration permission. This interpretation was affirmed by the High Court in L. and Y. Ltd. v. Minister for Business, Enterprise and Innovation. The Minister is therefore required to consider the particular facts of the case before coming to a conclusion as to whether or not to exercise her discretion
Review of the Decision to Refuse the Permit
Under S.13 of the Employment Permit Act 2006, as amended, it specifies how the review of a decision to refuse a work permit should be undertaken by the Minister.
The applicant is afforded with the right to make representations in writing regarding the appeal and if the appeal finding is the same as the original decision outcome ie to refuse the work permit, the applicant is entitled to having the reasons for this decision set out in writing to them. This is very important.
There is an obligation to give reasons for the decision by the decision maker.
The person should at the least know why the decision was made.
This recent court decision is very welcome as it reaffirms that the Minister has discretion when it comes to such decisions and the facts of each case need to be examined on its individual facts and the applicant is entitled to having the reasons of any permit refusal set out to them.
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