High Court quashes immigration refusal for failure to consider evidence and misappreciate critical skills permit status.
Irlande (IE)
Synthèse Legislator
Généré par l'IAThe High Court granted certiorari orders against the Minister for Justice, quashing refusals of long-stay visas for a family holding a critical skills employment permit. The court found the Minister failed to properly consider the applicant's submitted critical skills permit as evidence of work experience and misappreciated the meaning of a vague security concern. Consequently, the court ruled that the Minister did not exercise their discretion correctly by ignoring material evidence, necessitating a fresh consideration of the applications.
Regeste Legislator
Généré par l'IAEmployment Permits Act 2006; Immigration Act 2004: Where an administrative decision-maker fails to consider all duly submitted evidence or misappreciates the nature of evidence such as a critical skills permit, the decision is procedurally flawed and must be quashed.
Mots-clés
Généré par l'IADispositions légales citées
Généré par l'IAJurisprudence citée
Généré par l'IATexte complet
[2018] IEHC 760
THE HIGH COURT
2018 No. 338 JR
Between:
MUHAMMAD BILAL ASHRAF, SOBIA SALEEM, MUHAMMAD HANASH BILAL and ANUSH BILAL (the 3rd and 4th applicants are
minors suing by their next friend SOBIA SALEEM)
Applicants
– and –
MINISTER FOR JUSTICE AND EQUALITY
Respondent
JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2018.
1. Mr Ashraf, a Pakistani gentleman resident in Pakistan, has obtained a critical skills employment permit (CSEP) from the Department
of Business, Enterprise and Innovation (DBEI). Since receiving same, he, his wife and minor children have applied for long-stay visas
which have been refused by the respondent. Failed appeals have followed. The applicants seek, inter alia, orders of certiorari in
respect of the appeal decisions. The respondent enjoys wide discretion when exercising executive power in immigration matters
(Olakunori v. Minister for Justice, Equality and Law Reform [2016] IEHC 473), but he is subject to judicial review. Deficiencies present
in Mr Ashraf’s refusal on appeal which states, inter alia, that he:
(i) “has not provided a six month detailed bank statement”. This is not correct.
(ii) “has not supplied any evidence of experience of working in a similar capacity”. A copy of the CSEP was supplied. DBEI
guidance on CSEPs states, consistent with the Employment Permits Act 2006, that applicants “must possess the…
experience…required for…employment”. So a CSEP is a form of evidence of experience.
(iii) “may branch into the…UK”. Assuming this means that Mr Ashraf might seek to enter the UK, so too might any third
country national present here. To paraphrase TAR v. Minister for Justice, Equality and Defence [2014] IEHC 385, para.27,
the court cannot determine accurately what this reason means in the context of Mr Ashraf’s application.
2. Points (i) and (ii) show that the respondent did not consider all the evidence before him and/or did not appreciate certain evidence
for what it was. (Point (iii) is a further deficiency, though of a different nature). Appeals must be considered on all duly submitted
evidence, with that evidence being understood for what it is. The court will therefore grant the order of certiorari that Mr Ashraf
seeks.
3. The first ground for refusing Ms Saleem’s appeal is that Mr Ashraf’s application failed. Other reasons were offered (including a Point
(iii) point in respect of her). Given the deficiencies presenting as regards Mr Ashraf’s appeal, an order of certiorari will follow for Ms
Saleem. As to the children, their appeals failed because their parents’ appeals failed. So an order of certiorari will also issue in respect
of their appeals.
4. The court does not accept that because the applicants can make fresh application, they enjoy an alternative remedy. The
alternative remedy concept derives from the idea that judicial relief should be a remedy of last resort in any one administrative
process; in this case it is.