The Minister for Business, Enterprise and Innovation, Heather Humphreys, has been criticized for failing to use her discretionary executive powers under the Employment Permits Act, 2006. Her decision to refuse the application for the renewal of an employment permit by Mr Khong, a Malaysian national, was recently challenged in the High Court by Mr Khong’s employer. One reason cited for this refusal was that Mr Khong was illegally in the state. Furthermore, the documentation on the application revealed that Mr Khong received less than the annual remuneration stated on the previous employment permit. This meant it fell below the minimum required under the Employment Permits Act. The application was thus refused for non-compliance with the previous permit.
However, this reasoning did not reflect reality. Mr Khong had entered the state lawfully as a student and had remained here with a valid work permit for several years. His illegality stemmed from his employer failing to register him at the Local Immigration Office due to the employer being abroad. He was merely eight days late in applying for a new permit. The applicant provided a valid explanation for the fact that between July and December 2016 Mr Khong hadn’t been paid in accordance with the work permit. He stated that this discrepancy would be rectified. In addition, the applicant had received the correct salary from January 2017.
While the Minister adhered closely to the Act, this was not what she was required to do. The Act merely invests a discretionary power in the minister, which is evident from the careful and consistent use of the word ‘may’ in sections 12 and 20. Her failure to engage with the specific fact of this case was described by the court as a complete ‘abdication’ of the responsibilities conferred by this Act. The judge suggested that someone who had been living and working in the country illegally for a considerable length would qualify for dismissal. This was not the case at hand. Mr Khong’s brief period of unlawfulness was due to an administrative failure. The minister, in stating that the application ‘cannot be issued’ was decidedly incorrect both as a matter of law and a matter of principle. It was, in fact, her duty to engage with and consider the explanation offered by the plaintiff for non-compliance rather than simply refusing it. This is clearly not a black and white area of law. The careful wording of the Act grants the Minister the power to approach the subject with a broad mind and to consider the overall context while making the decision. Consequently, the court quashed her decision and ordered her to reconsider her decision in line with the reasoning of their judgment.
By Aoibhinn Nic Ghiolla Mhartain – Law Writer