Jun 23

Ali v. The Minister for Jobs, Enterprise and Innovation [2016] IECA 55

THE COURT OF APPEAL

The appellant, a Pakistani national, had entered Ireland on a student visa in 2007. This visa entitled him to study in Ireland and to work for 20 hours per week during term time and 40 hours per week during vacations. The appellant was a married man with a wife and child residing in Pakistan. The terms of his visa did not entitle his family to reside with him in Ireland.

In April 2014 the appellant applied for an employment permit under the terms of the Employment Permits Act 2006 having been offered a full-time position as a sales support assistant at an annual salary of €18,000. The Minister refused his application for a permit, inter alia, because his intended salary was not above €30,000 per annum.

The respondent argued that section 12 of the 2006 Act entitled the Minister to prescribe criteria for the grant of employment permits which amount to the institution of an administrative scheme. The appellant’s case was grounded on the proposition that the Minister, should he wish to establish such criteria, was required to do so by way of statutory instrument pursuant to section 14 of the Act, in the form of Ministerial Regulations.

Hogan J. (Ryan P. and Kelly P. concurring) applied the interpretative maxim generalia specialibus non derogant and ruled that the specific provisions of section 14(1)(d), which envisage regulations on the minimum level of remuneration for successful applications, must take precedence over the more general discretion given to the Minister by section 12. On that basis, the Minister’s decision to refuse the appellant’s application on the basis of a failure to meet a minimum level of remuneration, without having issued regulations setting out that minimum, was ultra vires. The decision of the High Court was reversed and the decision to refuse the appellant’s application quashed.