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Judgment | Title: | Akhtar v The Minister for Justice and Equality | | Neutral Citation: | [2019] IEHC 411 | | High Court Record Number : | 2017 379 JR | | Date of Delivery: | 06/06/2019 | | Court: | High Court | | Judgment by: | Keane J. | | Status: | Approved | | | |
[2019] IEHC 411 THE HIGH COURT [2017 No. 379JR] SALEEM AKHTAR APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr Justice David Keane delivered on the 6th June 2019
Introduction
1. This is the judicial review of a decision made on appeal by the Minister for Justice and Equality (‘the Minister') on 7 February 2017 to refuse the applicant Saleem Akhtar a visa authorising him to enter the State (‘the decision').
Background
2. Mr Akhtar is a national of Pakistan, where he resides.
3. On 31 August 2016, the Minister for Jobs, Enterprise and Innovation [the MJEI] wrote to Mr Akhtar to inform him that he had been granted an employment permit under s. 8 of the Employment Permits Act 2006, as amended (‘the Act of 2006'). That letter went on to state in material part: 4. The employment permit granted to Mr Akhtar recites on its face that it was valid from 11 November 2016 to 10 November 2018. It identifies Mr Akhtar's proposed employer as Silver Spoon Foods Limited; his proposed place of employment as Galway Curry and Kebab House, 20A Mary Street, Galway; and his proposed job as that of chef.
5. On 8 December 2016, the Consulate of Ireland in Karachi, Pakistan, wrote to Mr Akhtar to inform him that his application for an Irish visa had been refused by the Irish Naturalisation and Immigration Service (‘INIS'). The reasons given for that refusal were as follows: ‘ID:- Visa Officer is not satisfied with the quality of the employment letter submitted with the application.
ID:- Applicant has not provided any evidence of qualifications achieved.
INCO:- Inconsistencies e.g. contradictions in the information supplied - Advertised position required a minimum of 3 years experience which applicant has not provided evidence of.' The letter went on to inform Mr Akhtar that he could appeal the decision within 2 months of the date of that letter, and that all additional documents should be submitted with his appeal.
6. The applicant's solicitors wrote to the INIS to appeal that refusal on 23 January 2017, addressing each of the three reasons that were provided for it in turn. In response to the third reason given, they enclosed two additional documents, which they described as follows: ‘Letter from Al Naqebi Hotel, Lari Adda Cherlwal, Tehsil and District Gujrat. [T]his letter is dated the 2nd October 2016 and certifies that the Applicant was working as a Chef/Kitchen in charge from June 2013 to June 2016. On the 30th June 2016 he resigned of his own free will. This letter has been attested by a notary public in Plistan, by a magistrate and by the Ministry of Foreign Affairs;
Letter [from] SR, Shahbaz Restaurant dated 7th October 2016, confirms that the applicant has worked since the 1st July 2016 as a Senior Chef. This letter is attested by the Ministry of Foreign Affairs, Magistrate 1st class and by the Department of Tourist Services.' 7. Quite what the relevant notaries, magistrates and civil servants were attesting to has not been made clear in these proceedings. Was it the genuineness of those letters? Or the authenticity of the signatures upon them? Or the truth of their contents? I do not know. Some confusion is also caused by the statement of the applicant's solicitors in the material part of their cover letter that, on their instructions, it was Mr Akhtar's belief that, having already provided ‘this information' to the Department of Jobs, Enterprise and Innovation [‘the DJEI'] he did not need ‘to again provide same.' And yet, the two letters concerned, which contain the relevant information, are both dated October 2016, whereas Mr Akhtar had already obtained a work permit from the DJEI on 31 August 2016. That peculiarity, in turn, serves to focus attention on Mr Akhtar's failure in these proceedings to provide any meaningful information about precisely what information was placed before the MJEI in order to obtain that work permit.
8. On 7 February 2017, the INIS wrote to Mr Akhtar in Pakistan to inform him that his appeal had not been successful. The reasons provided for the refusal of a visa on appeal were as follows: ‘ID:- Quality of documents
INCO:- Inconsistencies e.g. contradictions in the information supplied.
The visa appeals officer is not satisfied with the quality of the employment letters issued from the applicant's stated employers in Pakistan. Both of these letters have insufficient contact details and information i.e. website or email addresses. Also noted are spelling mistakes and the incorrect use of grammar. The quality of these letters thus brings the required three years of experience into question. It is also noted that in the applicant's previous visit visa application he was working in a vastly different area from his stated employment here having already completed his ‘Chef & Cooking Course' some years before.
The onus rests on the applicant to satisfy the Visa Officer that a visa should be granted for the purpose sought. Accordingly, the decision to refuse the granting of the visa sought at first instance has been upheld following appeal.' 9. On 3 April 2017, Mr Akhtar's solicitors wrote to the INIS requesting that the Minister withdraw the appeal decision and reconsider the appeal on an accelerated basis. The letter asserted, in substance, that the Minister's decision was invalid for the following reasons. First, the decision wrongly went behind the work permit that had been issued to Mr Akhtar by the MJEI and, in making it on that basis, the Minister for Justice and Equality had unlawfully usurped a power that the Oireachtas had conferred solely upon that other Minister. Second, before making the decision, the Minister for Justice and Equality wrongly failed to confer with the MJEI concerning whatever information the latter held on Mr Akhtar's application. Third, the decision of the Minister to refuse Mr Akhtar a visa on the basis stated was a collateral attack upon the decision to grant Mr Akhtar a work permit. Fourth, the Minister acted ultra vires in considering matters relevant to Mr Akhtar's work permit application for the purpose of making the decision. Fifth, the Minister breached Mr Akhtar's entitlement to fair procedures in failing to give him an opportunity to address the Minister's concerns before making the decision on the basis stated. Sixth, the Minister's decision was irrational, and hence unlawful, in its approach to the assessment of Mr Akhtar's prior work experience and of the letters of reference he had provided.
10. The INIS replied by email, dated 11 April 2017. In material part, that email stated: ‘For clarity, it is worth noting that while the remit for issuing work permits rests with [the DJEI], work permits relate to employment only and they are not residence permits. It is therefore up to the holder of the work permit to seek appropriate permission from the immigration authorities in the State, to reside and undertake employment.
For their part, [the DJEI] only have the authority to investigate the advertising process in Ireland, as to whether the labour market needs test was complied with. That Department satisfies itself that the potential employer has attempted to fill the vacancy from within the Irish and EU market and, having failed to do so, has identified a suitable candidate from a country outside the EEA.
For our part, INIS, on behalf of the Minister for Justice and Equality, conducts checks on the documentation provided by the individual who applies for a visa to enter the State. In the case of [Mr Akhtar], such checks involve whether each applicant has the requisite skills, experience and qualifications in relation to the job advertised.' 11. The applicant's solicitors wrote once again to the INIS on 14 April 2017, disputing the Minister's assertions. They stated: ‘It is not correct to say that, for their part, [the DJEI] only have authority to investigate the advertising process in Ireland.
The Employment Permits Act [2006] requires the submission of proof of skills/experience/qualification. Section 6(c) of the [2006 Act] requires an applicant to provide: " information and, where required, any relevant documents in respect of the qualifications, skills, knowledge or experience of the foreign national concerned." The failure to do so is also a ground for refusal under section 12.
In addition, the information on the website of the DJEI in respect of leave to land does not suggest that [a work permit holder] will be required to submit the documents upon which the permit application was based, but rather the permit itself in order to get the appropriate entry visa. The same standard should of course be applied to the visa process which is just the pre-clearance process.' (all emphasis in original) 12. The statements just quoted are problematic for two reasons. First, s. 6(c) of the Act of 2006 provides that ‘an application for an employment permit shall provide information and, where required , any relevant documents in respect of the qualifications, skills, knowledge or experience of the foreign national concerned' (emphasis supplied). Thus, it is not correct to say that, as part of the work permit application process, the MJEI requires the submission of proof of skills/experience/qualification; rather, the MJEI may (not ‘will') require the provision of documents relevant to those matters. That is a distinction of fundamental importance in circumstances where Mr Akthar has not disclosed either the specific information or documentation that he was asked to provide to the MJEI in support of his work permit application or the specific information or documentation that he did provide. Indeed, Mr Akhtar has not even been forthcoming about whether he made the application to the MJEI for the work permit concerned, under s. 4(1)(b) of the Act of 2006, or Silver Spoon Ltd did, under s. 4(1)(a) of that Act, as his proposed employer.
13. Second, Mr Akthar's solicitor has exhibited the page on the DJEI website to which the letter refers. It states: ‘An employment permit is not permission to reside, but rather it is permission for a person who is not a national of Switzerland or an EEA State to be employed in Ireland. Employment permits operate in parallel with the State's immigration processes.
It is the policy that all new first time applicants for employment permits should normally make their application while resident outside the State. Following a successful application for an employment permit, and visa if required, an applicant should apply to his/her local Irish Embassy/Consulate for an entry visa….
Any person wishing to enter the State, whether visa required or not, is subject to the usual immigration controls at the port of entry. You may be required to produce relevant immigration documents, including your employment permit, for inspection by an Immigration Officer when you are entering the State. Entry to the State is always at the discretion of the Immigration Officer.' 14. Thus, it is plainly wrong to state, as the letter does, that a work permit holder is only required to submit ‘the permit itself in order to get the appropriate entry visa.' As the letter acknowledges in the same paragraph, the visa process is just a pre-clearance process. It is quite distinct from the permission to land process under s. 4 of the Immigration Act 2004, as amended. It is difficult to see how the information provided on the DJEI website about how the permission to land process may operate can be said to relate in any way to how the entry visa application process operates, much less that it can be said to stipulate how the latter process must operate. And even if that were not so, the relevant reference is to documents ‘including' an employment permit, not documents in material part ‘limited to' an employment permit.
15. It does not seem unfair to comment that, if a visa applicant is going to forego constructive engagement with the Minister on the merits of his or her application in favour of technical legal arguments concerning the lawfulness of the decision-making process, it is particularly important to properly state the facts and the law in doing so.
16. The Minister responded, through the Office of the Chief State Solicitor (‘the CSSO'), by letter dated 5 May 2017. It stated: ‘A non-national who has been granted a work permit is required to have a visa where the holder of the work permit comes within a class of non-national in respect of whom visas are required by orders made under section 17 of the Immigration Act 2004. Such orders are made by the Minister "for the purposes of ensuring the integrity of the immigration system, the maintenance of national security, public order or public health or the orderly regulation of the labour market or for the purposes of reciprocal immigration arrangements with other states or for the promotion of tourism." Your client comes within a class of non-national in respect of which a visa is required.
In deciding a visa application, the Minister is required to consider all the information available to her in light of the purpose for which visa orders are made, including documentation submitted for the purposes of a work permit where that documentation is relevant to an assessment of a visa application.
It is of course, a matter for you to advise your client as to how best to proceed but we would point out that your client may make a fresh visa application in which he can address the reasons for the refusal of his application which are set out in the decision of the 7th February, 2017. In these circumstances, there can be no purpose served by judicial review proceedings.'
Procedural history 17. By order made on 29 May 2017, O'Regan J granted Mr Akhtar leave to apply for judicial review of the decision. The application is based on a statement of grounds, dated 7 May 2017, subtended by an affidavit of the applicant's solicitor, sworn on the same date. The Minister's statement of opposition, dated 6 October 2017, was filed on the same day. It is grounded upon the affidavit of Emma Peppard, a higher executive officer in the Visa Division of the INIS, sworn on 6 October 2017.
Issues raised on affidavit
18. Mr Akhtar's solicitor avers on his behalf that he was not directed to any specific policy of the Minister on the grant of a visa to a person who holds an employment permit. In response, Ms Peppard has exhibited a printed version of the information that was freely and generally available at the material time on the Department of Justice and Equality website under the linked heading ‘Employment Visa'. In particular, my attention has been drawn to the following text on that webpage:
‘6. Supporting Documentation The documents below are important because they provide information about your personal circumstances in the country from which you are applying.
The onus is on you to satisfy the Visa Officer that a visa should be granted for the purpose sought.
The submission of any or all of these documents does not guarantee that your application will be successful.
Original documents must be provided.
If you submit a document that is not in English/Irish, it must be accompanied by a full translation. Each translated document must contain:
• confirmation from the translator that it is an accurate translation of the original document;
• the date of the translation;
• the translator's full name and signature; and
• the translator's contact details.
All letters submitted from a business, company or other organisation should be on official headed paper and give full contact details so that they can be verified. These must include a full postal address, name of contact, position in the organisation, telephone number (landline), website and email address (email addresses such as Yahoo and Hotmail are not accepted).
The Visa Officer considers each application on its merits and may request additional information or documentation.' 19. Mr Akhtar's solicitor avers that no opportunity was afforded to Mr Akhtar to address, or respond to, any concerns of the Visa Officer. Ms Peppard avers on behalf of the Minister in response: ‘[I]t is not the normal practice of INIS to provide an initial review and information to an applicant about potential limitations or inadequacies in their application. The onus of providing adequate supporting material rests on the applicant at both the initial and the appeal stage. The applicant is provided with an opportunity to make submissions and provide documentation at both stages. In particular, it should be noted that - contrary to the approach generally applied in appeal systems - the applicant is permitted to provide additional documentation or information at the appeal stage. Reasons are given at the initial stage, and again at the appeal stage when the mater is re-considered.' 20. And later, Ms Peppard avers: ‘[T]he suggestion that the [Minister] is required to assist all applicants in preparing and/or amending their applications would impose a significant administrative burden, would be very costly, and would be highly complex. INIS received approximately 115,700 applications for a visa in 2015 and approximately 124,200 in 2016. It would be administratively impractical for INIS to provide the preliminary guidance for each application which appears to be sought in these proceedings. That is particularly the case given that applications are invariably based on facts which are - in the first instance - peculiarly within the knowledge of the applicant.' 21. Mr Akhtar's solicitor raises a further complaint on his behalf, when she avers: ‘On the 5th May, I received a response from the CSSO that stated that my client may make a fresh visa application in which he can address the reasons for the refusals (sic) of his application set out in the decision of 7th February 2017. In circumstances in which the refusal appears to be wrong in law and in fact and in circumstance in which the decision would have ongoing adverse effects on future visa applications I do not believe that this course of action would be appropriate.' 22. Ms Peppard avers on the Minister's behalf in response: ‘[…] applicants whose applications for a visa have been refused remain at all times entitled to make a fresh application for a visa, and … such applications may be informed by and would typically address any limitations identified in the reasons given as part of the previous process.
It was made clear to [Mr Akhtar] that he was entitled to do so in this instance but he declined to make any such application. [Mr Akhtar's solicitor] has suggested…that the decision "would have ongoing adverse effects on future applications". I say that the refusal of an application for a visa does not preclude or in any way inhibit a person from making a fresh application. Furthermore, the fact that a previous application was refused is not a ground for the refusal of any fresh application. Regard may be had in certain circumstances to the previous application where that is necessary to verify factual aspects of the application received. This occurs where, for example, checks are conducted to confirm if an applicant has disclosed the previous refusal (as required on the application form); or to confirm that there is no inconsistency in the factual assertions contained within the applications. Regard is had to these factual aspects only, so that that the conclusions reached on the previous application are not in any way binding or determinative of the question of whether a visa should be granted. Any fresh application is considered on its own merits and substantively by reference to the documentation submitted with that application.'
Argument and Analysis i. the executive power of the Minister to control immigration
23. In Bode (a minor) v Minister for Justice [2008] 3 IR 663 (at 689-690), Denham J explained: ‘[60] In this case one of the fundamental powers of a state arises for consideration. In every state, of whatever model, the state has the power to control the entry, the residency, and the exit of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at p. 599 as:-
"In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State."
[61] The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at p. 746. He stated at p.746:-
"That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the Constitution." 24. More specifically, on the grant or refusal of visas, in RMR & Anor. v Minister for Justice & Ors [2009] IEHC 279, (Unreported, High Court (Clark J), 11th June, 2009), the position was summarised in the following way. ‘24. […] It is for the Minister to determine the conditions under which foreign nationals enter, remain and leave the State-this has been stated on many occasions by the courts (see e.g. Pok Sun Shum v. The Minister for Justice, Equality and Law Reform [1986] ILRM 593; Osheku v Ireland [1986] I.R. 377; In re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, F.P. v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164; A.O. and D.L. v. The Minister for Justice, Equality and Law Reform [2003] 1 IR 1; Bode (a minor) v. The Minister for Justice, Equality & Law Reform & Ors . [2008] 3 IR 663).
25. It is clear that the Minister is under no legal obligation to grant a visa - the grant or refusal of visas is entirely within his discretion and it is for the visa applicant to convince the Minister that he or she should be granted a visa. Government policy determines which foreign nationals require visas to visit or transit the State and whether they can work in the State. The inherent executive power and responsibility of the Government to formulate immigration policy is supplemented by statutory provisions including the Aliens Act 1935 and the Immigration Acts 1999, 2003 and 2004. There is at present no statutory framework for issuing visas.' ii. reviewing the exercise of executive powers
25. In Murray v Ireland [1991] ILRM 465, in the context of the executive powers to grant temporary release to a person sentenced to life imprisonment and to regulate prison conditions, Finlay CJ stated (at 473): ‘The exercise of these powers of the Executive is of course subject to supervision by the Courts which will intervene only if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the Executive not to exercise them in a capricious, arbitrary or unjust way.' 26. More recently, in the context of the executive power to grant enhanced remission of a prison sentence, Ní Raifeartaigh J surveyed the relevant law in Bradley v Minister for Justice [2017] IEHC 422 (Unreported, High Court, 26th May, 2017), concluding (at para.10): ‘It is therefore clear from the authorities that the scope for review by the court of the discretion to grant enhanced remission is very narrow. That said, it is not the case that there is no scope at all for review. The test is whether the decision was "arbitrary, capricious or unjust." Rare though such cases may be, the Court has an obligation to determine whether this has occurred in any particular instance brought before it for adjudication. I note the comments of O'Donnell J. delivering the judgment of the Supreme Court in Murphy v. Ireland and Ors [2014] 1 IR 198, albeit in the different context of the degree to which reasons must be given by the DPP in relation to the grant of a certificate that an accused should be tried in the Special Criminal Court. O'Donnell J. referred to an argument made on behalf of the plaintiff that a decision of the DPP was in effect unreviewable and pointed out that a review of the decided cases over the previous 15 years showed that the DPP's decisions were reviewable both in theory and in fact, and that challenges had succeeded on three occasions. He said:
"Thus, the courts have rejected any contention that a decision of the Director is unreviewable and have, in exceptional but real and justifiable cases, been prepared to review and if necessary quash such a decision. The fact that a jurisdiction is for good reason narrow, does not mean that it should be dismissed as non-existent. On the contrary such an outcome should direct attention to the considerations limiting review. In these cases a careful balance has been struck between a general principle restricting review and specific circumstances in which it will be permitted."
It seems to me that, similarly, although the scope for judicial review of decisions on applications for enhanced remission is, for good reasons related to the constitutional separation of powers, limited in scope, this does not mean that such review is non-existent. However, the Court should be careful not to overstep the boundaries and the underlying good reasons for the narrow scope of the zone of reviewability must at all times be borne in mind.' 27. I am satisfied that the approach identified by Ní Raifeartaigh J is the correct one to adopt to any review of the exercise of the executive power to control immigration.
iii. the relevant statutory power to grant an employment permit under the Act of 2006
28. The purpose for which Mr Akhtar was granted a work permit under s. 8 of the Act of 2006, was then specified under s. 3A(2)(c) of the Act of 2006. It provides: ‘(2) The purposes for which an employment permit may… be granted are:
….
(c) where the [MJEI] is satisfied that a person in the State has been unable to recruit an employee for a vacancy for an employment, to provide for the recruitment of a foreign national who has the required knowledge and skills for the employment and, where appropriate, the qualifications and experience as may be required for that employment….' 29. It is thus apparent that, as one might expect, the employment permit process is focused on the regulation of the labour market and, in that context, is intended to ensure that foreign nationals should only be recruited where vacancies cannot otherwise be filled. The process is, at best, only incidentally concerned with whether a particular foreign national recruited to fill such a vacancy has the required knowledge, skills, qualifications or experience to do so.
30. Section 6 provides, in material part: ‘6. - An application for an employment permit shall -
…
(b) provide information in respect of the qualifications, skills, knowledge and experience that are required for the employment concerned,
(c) provide information and, where required, any relevant documents in respect of the qualifications, skills, knowledge or experience of the foreign national concerned….' 31. Section 10A of the Act of 2006, which applies to an application for an employment permit of the kind at issue here, i.e. one for the purpose specified in s. 3A(2)(c) , prohibits the grant of such a permit unless the MJEI is satisfied that certain steps have been taken to offer the job concerned to a citizen or qualifying foreign national by first advertising it in the manner prescribed by that section.
32. Section 11(1) states: ‘11. — (1) In considering an application for an employment permit, the [MJEI] shall have regard to—
(a) the extent to which a decision to grant the permit would be consistent with economic policy for the time being of the Government,
(b) whether the knowledge and skills and, where appropriate, the qualifications and experience referred to in section 6(b) are required for, or relevant to, the employment concerned,
(c) such of the other matters referred to in section 6 as are relevant to the application,
(d) if any of paragraphs (a) to (j) of section 12(1) fall to be applied in relation to the application, any matters that, in the opinion of the [MJEI] are material to the application of such a paragraph or paragraphs, and
(e) the different purposes, specified in section 3A(2) for which an employment permit may be granted.' 33. Section 12(1) of the Act of 2006 deals with the circumstances in which the MJEI may refuse to grant an employment permit. Those circumstances include: ‘(l) if he or she is satisfied that the foreign national concerned does not possess the qualifications, knowledge or skills for the employment concerned or the foreign national concerned does not have the appropriate level of experience required for the employment.' 34. Thus, in the Act of 2006, the Oireachtas has chosen to do a number of things. First, a distinction has been drawn between matters of which the MJEI must be satisfied before granting an employment permit and those to which the MJEI must have regard in considering an application for one. The matters of which the MJEI must be satisfied all relate to the requirement to offer the job concerned to a citizen or national of a qualifying state by appropriately advertising it before an application for a work permit is made. The matters to which the MJEI must have regard include, amongst many others, the information and, where required, relevant documents provided in respect of the qualifications, skills, knowledge or experience of the foreign national concerned. There is no suggestion in the Act of 2006 that the MJEI must be satisfied that the foreign national possesses the qualifications, knowledge or skills, or has the appropriate level of experience, required, for the employment; the MJEI is merely empowered to refuse to grant an employment permit where satisfied that the foreign national concerned does not possess them.
iv. the separation of powers
35. The sovereign power of the State to control the entry, residency, and exit of foreign nationals is an executive one that can be controlled by legislation; see, for example, Keane J in Laurentiu v Minister for Justice [1999] 4 IR 26 (at 93).
36. Mr Akhtar argues that the executive power of the Minister to grant or withhold a visa to a person who holds a work permit issued by the MJEI is significantly controlled by the Act of 2006.
37. In doing so, he relies in his written submission, a little eccentrically it might be said, on the principle of British constitutional law that the enactment of a statute empowering the Crown to do a certain thing which it might have done in the exercise of the prerogative, places the prerogative power in abeyance while the statute remains in force; A.G. v De Keyser's Royal Hotel Ltd [1920] AC 508 ( per Lord Atkinson at 539-40).
38. Our own constitutional dispensation is somewhat different. Parliament is not sovereign. We recognise a separation of powers. Notwithstanding the express terms of Article 49 of the Constitution, prerogative rights did not survive its adoption, save to the extent that they may be considered an inherent attribute of the sovereignty of the State; Byrne v Ireland [1972] IR 241; Webb v Ireland [1988] IR 353; and Howard v Commissioners of Public Works [1994] 1 IR 101.
39. Nothing turns on the question because, in the course of oral submissions, counsel for Mr Akhtar turned for support instead to the decision of O'Donnell J for the Supreme Court in NHV v Minister for Justice and Equality [2018] 1 IR 246. That case concerned a successful challenge to the constitutionality of s. 9(4) of the Refugee Act 1996, which imposed an absolute prohibition on an asylum applicant seeking, or engaging in, work. One of the arguments raised in defence of the section was that the prohibition it contained was not necessarily absolute in its effect because the Minister retained the inherent power to grant permission to work to any asylum applicant as part of the broad executive power to control the residence of foreign nationals in the State. O'Donnell J rejected that argument in the following terms: ‘[11] Nor do I think that any inherent executive power could avail the applicant here. The control of entry to the State by non-citizens, and the range of activities in which they can engage while here, was as a matter of history a core function of the executive power. The question as to what extent that executive power can remain if legislation seeks to control the area is an interesting one rarely debated. But even if there remains a residual executive discretion after legislative regulation, it could not be operated to effect the repeal or amendment of a section of legislation which explicitly provided that an asylum seeker should not seek or obtain employment while in the refugee system. It was after all decided as long ago as 1610 in the Case of Proclamations (1610) 12 Co. Rep. 74 that the royal prerogative did not extend to repealing or overriding any legislation, and the same must be capable of being said, a fortiori , of the executive power in a constitution which recognises a separation of powers.' 40. Coming at the same question from a slightly different angle in Olakunori (a minor) & Ors v Minister for Justice & Equality [2016] IEHC 473, (Unreported, High Court, 29th July, 2016) (at par. 42), Humphreys J observed ‘in immigration matters, which are classically at the core of the executive power of a State, there must be a wide discretion vested in the decision-maker in the absence of clear statutory provisions to the contrary….'
41. In my view, Mr Akhtar faces two insurmountable obstacles in seeking to rely on those authorities, one legal and one factual. The insurmountable legal obstacle is that, as I have already found, there is no requirement under the Act of 2006 that the MJEI be satisfied that the foreign national concerned has the appropriate level of experience required for the employment to which the work permit relates. It follows that, when, in the exercise of his broad executive power to control immigration, the Minister requires a foreign national with a work permit to establish in order to obtain a visa that he or she does have the appropriate level of experience for that employment, there is no question of the Minister operating to effect the repeal or amendment of any section of the Act of 2006. Differently put, there is no clear statutory provision in the Act of 2006 that operates to curtail or constrain the exercise of the wide discretion vested in the Minister in the exercise of his executive power.
42. The insurmountable factual obstacle that Mr Akhtar faces is his failure to disclose for the purpose of these proceedings the information (and documentation, if any) concerning his work experience that was provided to the MJEI in accordance with s. 6 of the Act of 2006 when the application for a work permit was made (whether by Mr Akhtar or his proposed employer), and to which the Minister would have had regard, insofar as it was considered relevant to do so, under s. 11(1)(c) if that Act. Thus, not only is there no basis to conclude that the MJEI was required to be satisfied that Mr Akhtar had the appropriate experience, but there is no basis to conclude that there was any, or any sufficient, material before the MJEI that would have allowed him to be so, had he nonetheless embarked on that consideration.
v. fair procedures
43. There is no qualified, much less absolute, right to a visa and no other recognised right - such as the right to apply for international protection, the right to free movement under EU law, or the right to respect for family or private life - is engaged in this case. It is true that, even in the exercise of a broad executive power, the Minister is not at large. No discretion is absolute; see, for example, AMS v Minister for Justice [2016] IESC 65, (Unreported, Supreme Court, 20th November, 2014) (per Clarke J at para. 6.1). Nonetheless, it is well established that the requirements of natural and constitutional justice and fair procedures will vary depending on the nature and extent of the rights or interests at stake; see, for example, Flanagan v University College Dublin [1998] I.R. 724.
44. Mr Akhtar complains that he was not provided with an opportunity to address the matters of concern to the Minister prior to the Minister's decision on appeal. I reject that submission. In Khan & Ors. v Minister for Justice and Law Reform [2017] IEHC 800 (an EU law ‘permitted family members residence permission' case), Faherty J accepted (at paras. 83-85) that it was incumbent on the applicants to put their best foot forward and to present such relevant facts and evidence as may be necessary to support their application; the Minister could not be criticised for the condition of the applicants' own proofs. In reaching that conclusion, Faherty J cited the following dictum of Hedigan J in AMY v Minister for Justice [2008] IEHC 306, (Unreported, High Court, 9th October, 2008) (at para. 22): ‘There is no onus on the Minister to make enquiries seeking to bolster an applicant's claim. It is for the applicant to present the relevant facts.' This is not a case that attracts the level of procedural protection appropriate to the determination of refugee status claims, considered in cases such as B.W. v Refugee Appeals Tribunal [2017] IECA 296, (Unreported, Court of Appeal, 15th November, 2017).
45. Mr Akhtar argues that the Minister wrongly required him to re-prove the case that he had already successfully made to obtain a work permit. As I do not accept that anyone was required to prove (rather than merely provide information concerning) Mr Akhtar's relevant work experience to obtain that work permit, and as I have no idea what information (and documentation, if any) was placed before the MJEI when the work permit application was made, I reject that argument.
46. Mr Akhtar claims that the Minister failed to provide him with a clear statement of, or to apply a clear policy on, what is expected of a visa applicant who holds a work permit. Without attempting to adjudicate on whether any such obligation exists and , if so, how extensive a constraint on the Minister's broad discretion it might be, I am satisfied that the information provided on the Department of Justice and Equality website, which was freely and generally available at all material times, is ample to discharge it, if it does exist.
47. Mr Akhtar asserts that the Minister either breached or failed to have regard to the policy of the MJEI (as evidenced on the DJEI website) on the requirements necessary for work permit holders to obtain visas from the Minister. For the reasons I have already set out, I do not accept that there is any basis in fact for that criticism, which also lacks any basis in logic. There is no requirement on the Minister to have regard to the policy of the MJEI on the Minister's visa policy (if such a policy on the part of the MJEI could properly be said to exist).
48. Mr Akhtar argues that the Minister breached an obligation to remit the issue of his work experience to the MJEI (presumably, for consideration in accordance with the functions and powers of the MJEI under the Act of 2006). I am satisfied that no basis for the existence of any such obligation has been identified, much less made out.
vi. unreasonableness or failure to give reasons, or both
49. I am satisfied that the Minister did not fail to give adequate reasons for his decision. The reasons given have been set out earlier in this decision. Mr Akhtar seeks to impugn them by impugning the policy underlying them. Whether a reference letter submitted from a business, company or other organisation must give full contact details that include a website and email address is a matter for the Minister and not for the court, as is the level of importance (if any) to be attributed to mistakes of spelling or grammar in any such letter. It is for the applicant to satisfy the Minister concerning any perceived peculiarities or anomalies in his work or employment history. The fact that there might be a simple explanation for any such anomaly is neither here not there, when no such explanation has been provided.
50. I am satisfied that Mr Akhtar was given sufficient information to enable him (alone, or with his legal advisers) to assess the lawfulness of the Minister's decision, particularly in the context of the wide discretion that the Minister was exercising in making it. Thus, the test articulated in Rawson v Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1st May, 2012), and approved in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34, (Unreported, Supreme Court, 3rd July, 2013) has been met.
51. I reject Mr Akhtar's unsupported assertion that the Minister's decision fails the test of reasonableness under the principle identified by Henchy J in State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642 and subsequently followed and approved innumerable times, most notably in Meadows v Minister for Justice [2010] 2 IR 701, i.e . that it plainly and unambiguously flies in the face of fundamental reason and common sense. I can find no basis for any such conclusion.
vii. breach of legitimate expectation
52. There is no basis in the evidence before me for any such claim. I therefore reject it.
viii. acquiescence and waiver
53. The Minister makes the cogent argument that, in submitting. through his legal representatives, both at first instance and on appeal, a range of documents on his qualifications, skills, knowledge and experience relevant to the employment for which he had obtained a work permit, and in allowing his application for a visa to be considered and adjudicated upon on that basis, Mr Akhtar waived any entitlement to then challenge the Minister's adverse decision on the basis that it was impermissible for the Minister to have considered those matters. The Minister cites State (Cronin) v. Circuit Judge of the Western Circuit [1937] IR 44 and Corrigan v Land Commission [1977] 1 IR 317 in support of that argument. In my view, the point is well taken, and I would refuse the application on that ground also.
ix. alternative remedy
54. Finally, while the Minister acknowledges that the existence of an alternative remedy does not of itself debar an application for judicial review, he urges the court to exercise its discretion to refuse relief in this case nonetheless on the basis that Mr Akhtar had available to him at all material times an economical and expeditious alternative to these costly and protracted proceedings in the form of a fresh application to the Minister. Certainly, the bald averment of the applicant's solicitor that, if left unchallenged, the Minister's decision would have ongoing adverse effects on future visa applications by Mr Akhtar remains entirely unsubstantiated.
55. If, as Mr Akhtar contends, he provided the MJEI with the information and documentation appropriate to establish his qualifications, skills, knowledge and experience relevant to the employment in question, then why can he not now furnish it to the Minister, supplemented by whatever additional documentation or information is necessary to meet the particular concerns that the Minister has raised.
56. It is, thus, a matter of some disquiet to think that visa applicants and their legal representatives may harbour the belief that it is more prudent or advantageous to mount speculative proceedings over three days in the High Court of Ireland on the nature and extent of the separation of powers under the Constitution of Ireland (or, more unsettling still, on the nature and extent of any surviving royal prerogative under the common law of Ireland) than to submit a fresh visa application to the Minister that addresses the small number of specific concerns that led to the refusal of the last one.
57. However, since Mr Akhtar's proceedings have failed on the merits, it is unnecessary to decide whether his application would also have encountered this particular discretionary bar to relief.
Conclusion
58. The application for judicial review is refused. | |
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