Work Permits

Cases

In the Matter of the Constitution of Ireland and In the Matter of the European Convention on Human Rights Act 2003;

Shardha Sobhy v The Chief Appeals Officer

, Minister for Employment Affairs and Social Protection, Ireland and The Attorney General (Respondents) and The Irish Human Rights and Equality Commission (Notice Party)
2020 / 353 JR

High Court [Approved]

12 January 2021

unreported
[2021] IEHC 93
Mr. Justice Heslin

JUDGMENT
Introduction
1. It is not in dispute that, pursuant to s. 300 (2) (iv) of the Social Welfare Consolidation Act, 2005, a deciding officer is entitled to decide on a question as to whether an employment is or was “ insurable employment ” for the purposes of that Act. In the present case, the applicant seeks judicial review of a decision of 05 March 2020 whereby the first named respondent determined that the applicant’s employment was not “ insurable ” employment for the purposes of an entitlement to maternity benefit. In circumstance where the applicant was not the holder of a valid Garda National Immigration Card (GNIB) or work permit while working in Ireland during a certain period of years, during which she made PRSI contributions, the first named respondent took the view that such employment is not considered to be legally valid and any PRSI contributions made from this employment are also not considered to be valid. Thus, the first named respondent decided that the applicant could not satisfy the contribution criteria associated with the relevant scheme to qualify for maternity benefit. The first named respondent took the view that, where a non-EU national is employed without a valid work permit, such employment is not legal and, therefore, the employment will not be insurable. Relying on a 1995 decision by the Supreme Court, in FAS v. Abbot, (Unreported, 23 May 1995), the first named respondent decided that a contract of employment which contravenes work permit legislation is an illegal contract of employment and, therefore, does not come within the definition of a “ contract of service” for the purposes of the Social Welfare Consolidation Act 2005, as amended and, thus, is not insurable employment for the purposes of the 2005 Act. It is this decision that the applicant challenges.

A summary of relevant facts
2. The applicant is a citizen of Mauritius. She arrived in Ireland on 05 March 2008 and registered with the Garda National Immigration Bureau (“GNIB”).

Lawfully in the State from 2008 – 2012
3. The applicant was lawfully in this State until 26 June 2012, having been granted five consecutive “Stamp 2” permissions to reside during the following periods: –

03 June 2008 to 10 March 2009;

19 May 2009 to 31 January 2010;

10 May 2010 to 10 August 2010;

17 August 2010 to 30 April 2011; and,

30 June 2011 to 26 June 2012.

21 November 2011 letter from the applicant seeking “Stamp 4”
4. In a letter dated 21 November 2011, addressed to the Irish Naturalisation and Immigration Service (“INIS”) of the Department of Justice and Equality, the applicant wrote as follows: –

“Dear Sir/Madam,

I, Mrs. Shardha Mooruth, living in Republic of Ireland since March 2008. I am a citizen of Mauritius, married to Mr. Thirag Mooruth (but separate for 5 years). I have 2 children living in Mauritius. I am a student here bearing the GNIB No. 403279. I have a part – time job here. I do not have any complaints at work, or have committed any offence against the law of Ireland or in Mauritius. I would like to make a request to general immigration section for a Stamp 4. Please do not hesitate to contact me … if you need any further information.

Kind regards”.

11 May 2012 letter to the applicant refusing application for Stamp 4
5. By letter dated 11 May 2012, the foregoing application to change from Stamp 2 to Stamp 4 status was refused and the INIS letter noted that the applicant currently had permission to remain in the State on Stamp 2 conditions until 26 June 2012. The letter concluded by stating that: –

“The onus remains on you to keep your permission to remain in the State up to date at all times”.

20 July 2016 letter from the applicant
6. In a letter received on 20 July 2016, the applicant again sought to change her immigration status, stating, inter alia, the following: –

“I am writing to you in relation to my visa. For the time being my visa has expired. I came to Ireland on the 5th March 2008. Ever since, I’ve been working and contributing towards Irish economy. I have been paying my PAYE and PRSI taxes on regular basis. I was expecting a new law to be out for the undocumented in this country but unfortunately this has not happened to date yet. I am living in this country for the past nine years and I highly consider Ireland as my home country. I would like to continue living in this country with all my paperwork in order. Sir/Madam, it would be highly appreciated and I would be very grateful if you can grant me my visa extension so that I could stay in this country legally. I apologise for any and all inconvenience as I had and I have no intention to remain in the country without a visa. It was my situation who forced me to do so. You will find photocopy of my P60, P21 and all my visa stamps since I entered the country. I look forward to your reply.

Regards”.

05 August 2016 letter to the applicant
7. By letter dated 05 August 2016, the foregoing application was refused in a letter from the Residents Division of the INIS which stated inter alia: –

“Because you did not have permission when the application was received, the question of amending or extending it does not arise. Accordingly, your case will not be dealt with under s. 4 of the 2004 Immigration Act”.

The said letter concluded with the following paragraph: –

“Please be informed that it is illegal under the Immigration Act 2004 to reside in the State without permission from the Minister for Justice and Equality. A person found guilty of such an offence is liable, under s. 13 of the Act of 2004, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding twelve months, or both. As you do not have current immigration permission you are not entitled to work”.

23 November 2016 letter from applicant’s solicitors
8. By letter dated 23 November 2016 a firm of solicitors who were then representing the applicant, wrote to the Residents Division of the INIS requesting a review of the decision communicated in the letter from the INIS dated 05 August 2016. Among other things, the 23 November 2016 letter submitted that the applicant completed only four years on student conditions in the State. The letter also referred, inter alia, to a report entitled “New immigration regime for full-time non-EEA students: final report and recommendations of the interdepartmental committee” as well as to “Guidelines for non-EEA national students registered in Ireland before 1 January 2011”. The said letter concluded with the following: –

“Nothing in either the Report nor the Guidelines specifically addresses the situation of persons who became undocumented after completing less than the maximum time allowed on student conditions. We therefore respectfully submit that your decision was flawed, and request a review of same”.

9. At this juncture it is appropriate to point out that it is unknown whether a response was ever provided to this 23 November 2016 letter and nothing turns on any absence of any response for the purposes of the decision which this Court has to make.

October 2018 Scheme
10. In or about October 2018 the Minister for Justice launched a scheme to allow certain non-EEA nationals, who held a valid student permission during the period 01 January 2005 to 31 December 2010 and who had not in the intervening period acquired an alternative immigration permission, to apply for permission to remain in the State. The applicant applied under the said Scheme.

26 February 2019 letter granting temporary permission to reside on “Stamp 4S”
11. On 26 February 2019 the INIS wrote to the applicant, referring to her application which was made under the Special Scheme for Students from 01 January 2005 to 31 December 2010. The said letter informed the applicant that the Minister for Justice and Equality had decided to grant her temporary permission to reside on Stamp 4S conditions for a period of two years from the date of the letter. The permission granted as of 26 February 2019 was on the basis of conditions set out in the said letter including the requirement that the applicant register with her local Immigration Officer as soon as possible. It is not pleaded in the case before this Court that the applicant has breached any of the conditions in respect of the Stamp 4S permission granted with effect from 26 February 2019. The applicant’s passport shows her Stamp 4S, the applicant having attended at Kildare Garda Station. It is not in dispute that the applicant has been lawfully residing in this State from 26 February 2019 onwards and that the applicant is permitted to reside in the State up to 26 February 2021.

The applicant’s employment – 2008 to 2019
12. It is not in dispute that, between 2008 and 2019, at a time when the applicant did not have permission to reside or work in the State, she engaged in paid employment. Among the documents exhibited by the applicant is a “P60 Certificate of pay, tax, Pay Related Social Insurance, Universal Social Charge and Local Property Tax year ended 31 December. 2018” naming her as the employee and naming her employer as “Cross Retail Supervalu Ltd.” Among other things, this P60 specifies the applicant’s PPS number and details inter alia, total pay, tax, USC and “PRSI in this employment”, identifying both the “employee’s PRSI” as well as “Total (employer plus employee) PRSI”. The P60 certificate concludes with the following words: –

“TO THE EMPLOYEE – This is a valuable document.

You should retain this document carefully as evidence of tax, PRSI, Universal Social Charge and LPT deducted.

Note: There is a four – year time limit on claiming refunds of tax or Universal Social Charge.

You may also require this document as evidence if you claim social welfare benefits within the next two years”.

13. It is not in dispute that, between 2008 and 2019, inclusive, the applicant made numerous social welfare contributions. Among the applicant’s exhibits is a 31 May 2019 letter from the Department of Employment Affairs and Social Protection which sets out the applicant’s social insurance record. The said letter from the second named respondent’s department confirms that the applicant made the following number of paid contributions during the following years:-

Year

Paid contributions

Reckonable paid contributions for pension

2008

38 A, 1 J

38

2009

26 A

26

2010

29 A

29

2011

48 A

48

2012

44 A, 1 J

44

2013

33 A

33

2014

52 A

52

2015

53 A

52

2016

48 A

48

2017

51 A

51

2018

37 A

37

The applicant’s maternity leave and application for maternity benefit
14. The applicant commenced maternity leave on 15 December 2018 and gave birth on 09 January 2019. On 11 April 2019, the applicant applied for maternity benefit. It is not in dispute that the application for maternity benefit was made at a time when the applicant was lawfully resident in the State.

Eligibility criteria for maternity benefit
15. The relevant eligibility criteria for maternity benefit can be found in ss. 47 – 51 of the Social Welfare Consolidation Act, 2005. The first of these is that a doctor has certified that the woman in question has been confined, namely, that she has undergone labour resulting in the birth of a living child. This is not disputed. Another condition is that her employer has certified that she is entitled to maternity leave under the Maternity Protection Act 1994. This is not in dispute. A third condition is that the applicant has paid 39 PRSI contributions in the twelve months prior to the first day of maternity leave. This is not disputed. A fourth condition is that the applicant was an employed contributor, namely, that she was employed under a contract of service.

“employed contributor”
16. As the Interpretation section of the 2005 Act makes clear: – “ ‘ employed contributor’ has the meaning given to it by section 12(1) of the 2005 Act ”. Section 12(1) which is quoted, verbatim and in full elsewhere in this judgment, states inter alia that every person over the age of sixteen and under pensionable age who is employed in any of the employments specified in Part 1 of Schedule 1, not being an employment specified in Part 2 of that Schedule, shall be an employed contributor for the purposes of the 2005 Act. It is accepted by the respondent that nothing in the 2005 Act or in any Schedule thereto states that, where the employee lacks permission to reside or to work in the State, they are not to be treated as employed or are not to be treated as an employed contributor for the purposes of the 2005 Act. Part 1 of Schedule 1 refers inter alia to employment in the State under a contract of service. It cannot be disputed that, at all material times, the applicant’s employment comes prima facie within the definition in Schedule 1, Part 1.

17. The respondent says that the applicant’s contract of employment was an “illegal” contract but acknowledges that nowhere in Schedule 1, Part 1 does it say that a person who is employed under a contract of service at a time when they lack the relevant permission to reside and to work in the State is someone whose contract of employment is illegal or void or unenforceable or that such a contract falls outside Schedule 1Part 1 of the 2005 Act. It is accepted that the applicant’s situation does not come within any of the categories of “Excepted Employments” which are specified in Schedule 1, Part 2 of the 2005 Act. It is also common case that nowhere is it stated in Schedule 1, Part 2 that “Excepted Employments” include contracts of service where the employee in question does not, at the time of the employment, have permission to reside or work in the State.

04 June 2019 decision by Deciding Officer to refuse application for maternity benefit
18. On 04 June 2019 one of the second named respondent’s deciding officers refused the applicant’s claim for maternity benefit. The sole basis for the refusal was that, because the applicant did not have a valid work permit, her employment was not insurable.

23 June 2019 appeal by the applicant
19. On 23 June 2019, the applicant appealed this decision to the Social Welfare Appeals Officer within the second named respondent’s Department. The grounds of appeal were stated as follows: “ The Department erred in law in determining that the appellant was not in ‘insurable employment’. Further grounds to follow ”. It is not in dispute that no further submissions were made by or on behalf of the applicant prior to the decision in respect of the aforesaid appeal.

05 March 2020 decision
20. By letter dated 05 March 2020, sent by the social welfare appeals office to the applicant’s solicitors, the decision of the first named respondent was set out and, being the decision challenged in the present proceedings, it appropriate to quote same verbatim and in full, as follows: –

“Dear Sirs,

The Chief Appeals Officer has asked me to write to you about the Maternity Benefit appeal of Ms. Shardha Sobhy … and to tell you that the appeals officer’s decision is as follows: –

The appeal is disallowed.

The text of the Appeals Officer’s formal decision is set out below.

The appellant’s claim for Maternity Benefit was received in the Department of Employment Affairs and Social Protection on 11/04/2019 via the online application process. The appellant confirmed in the application that her baby was born on 09/01/2019. The appellant went on to confirm she commenced her leave on 15/12/2018 and that the leave was to end on 15/06/2019.

On the file provided by the Department to the Appeals Office, the Appeals Officer has noted that the appellant submitted a one – page colour photocopy of her Republic of Mauritius. There are no GNIB stamps on the passport copy provided.

On 12/04/2019 the Department wrote to the appellant requesting further information as detailed below,

(1) A copy of your most recent and valid GNIB (Garda National Immigration Bureau) card/work permit. If you have recently become an EU citizen you can provide a copy of your current EU passport instead.
(2) A copy of your current and/or previous passport, which includes all stamps relating to any GNIB cards held within the last 3 years or to the date of naturalisation.
(3) A copy of all work permits held within the last 3 years (if applicable).
Mrs. Sobhy’s claim was disallowed on 14/06/2019 and the Deciding Officer gave the following reasons for the decision:

‘I regret to inform you that your claim has been disallowed as you do not satisfy the employment conditions for the scheme.

Maternity Benefit is paid to a person who takes maternity leave from work. You must have a certain number of paid PRSI contributions on your social insurance record and be in insurable employment up to the first day of your maternity leave. The last day of work must be within 16 weeks of the end of the week in which your baby is due.

As you do not have a valid work permit while you were working in Ireland, your employment was not insurable and you are not entitled to Maternity Benefit’”.

The Department also issued another letter, also dated 04/06/2019 to the appellant stating:-

“We have been unable to establish that you were the holder of a work permit while you were working in Ireland and therefore you were not engaged in insurable employment in accordance with the Social Welfare Consolidation Act 2005.

Since we have been unable to determine that the employment you engaged in was insurable, I regret to inform you that your claim for Maternity Benefit has been disallowed.

Abbey Law Solicitors made an appeal submission on behalf of the appellant dated 23rd July 2019 and explained the delay in submitting the appeal was due to the appellant’s solicitor changing firm and hoped that the appeal would be accepted. They also provided a signed Authority to act form and the appellant’s appeal submission dated the 22nd July 2019 which stated,

‘The Department erred in law in determining that the appellant was not in ‘insurable employment’ for the grounds to follow”.

The next correspondence received from Abbey Law on file is their letter dated 09 October 2019 to the Appeals Office in Dublin stating: –

‘We refer to the above matter and to our appeal dated 23rd July 2019. We have not received any acknowledgment to date. We would be obliged if you could acknowledge this and our appeal’.

No further evidence or information was provided by way of supplement to the appeal of 23/07/19.

I have noted the appellant’s grounds of appeal and the decision issued by the Department of Employment Affairs and Social Protection.

The appellant in this case has failed to submit confirmation that she was the holder of a valid Garda National Immigration Card (GNIB) or work permit while working in Ireland. Without a GNIB card/work permit, Ms. Sobhy’s employment during the period of employment is not considered to be legally valid and any PRSI contributions made from this employment are also not considered to be valid.

Consequently, she could not satisfy the contribution criteria associated with the Scheme as she did not have the requisite number of valid contributions needed to qualify in any of the required contribution combinations as set out hereunder:

To qualify for Maternity Benefit, a claimant must satisfy one of the following contribution conditions:

(a) 39 PRSI contributions paid in the 12 months prior to the first day of maternity leave (25/07/2017 in this case), OR
(b) 39 PRSI contributions paid since first started work AND 39 PRSI contributions paid or credited in the Relevant Tax Year (2015 in this case) or in the tax year subsequent to the relevant tax year (2016) OR
(c) 26 PRSI contributions paid in the Relevant Tax Year (2015) AND 26 PRSI contributions paid in the tax year prior to the Relevant Tax Year (2014 in this case).
PRSI classes A, E, H and S are reckonable for Maternity Benefit.

Where a non-EU national is employed without a valid work permit neither the employer nor the employed person is free to enter into a contract of employment. Such employment is not legal and therefore the employment will be ruled by Deciding Officer not to be insurable as has happened in this instance.

The reason why such contributions are not valid is because a contract of employment which contravenes the work permit legislation is an illegal contract of employment and therefore does not come within the definition of a ‘contract of service’ for the purposes of the Social Welfare Consolidation Act 2005 as amended. The employment is therefore not insurable for the purposes of this Act

This is the position as set out in the decision of the Supreme Court in the case of FAS v. Minister for Social Welfare, Abbot and Ryan, (Unreported, 23 May 1995). In that case, the Supreme Court had to consider whether the term ‘contract of service’ in the corresponding section of the Social Welfare (Consolidation) Act 1981 included an illegal contract or an ultra vires contract.

The Supreme Court held that “If the Oireachtas has decided to prohibit expressly and absolutely a particular type of contract by statute, it would be anomalous if reliance were to be placed on that contract for the purpose of social welfare contributions and benefits …”.

The Court found that in the absence of any statutory extension of the definition of ‘contract of service’ under the social welfare legislation to include an illegal contract, no contribution or benefit could accrue under the social welfare legislation.

Having considered the evidence before me and the context of the legislation and the attendant case law I find that the appellant has not provided confirmation that she was the holder of a valid contract of service for the period in question and consequently cannot satisfy the contribution requirements of the Maternity Benefit scheme for her claim of 11/04/2019.

In the circumstances, the appeal is disallowed ….” (emphasis added)

Relevant Legislation
21. A number of statutory provisions are of relevance to the present proceedings and for the sake of clarity these are set out as follows:

“SOCIAL WELFARE CONSOLIDATION ACT 2005

Interpretation.

…

“employed contributor” has the meaning given to it by section 12(1);

“employer’s contribution” has the meaning given to it by section 6(1)(a);

…

CHAPTER 2

Employed Contributors and Employment Contributions

Employed contributors and insured persons.

12.—(1) Subject to this Act—

(a) subject to paragraph (b), every person who, being over the age of 16 years and under pensionable age, is employed in any of the employments specified in Part 1 of Schedule 1, not being an employment specified in Part 2 of that Schedule, shall be an employed contributor for the purposes of this Act, and

(b) every person, irrespective of age, who is employed in insurable (occupational injuries) employment shall be an employed contributor and references in this Act to an employed contributor shall be read accordingly, and

(c) every person becoming for the first time an employed contributor shall thereby become insured under this Act and shall thereafter continue throughout his or her life to be so insured.

(2) Regulations may provide for including among employed contributors persons employed in any of the employments specified in Part 2 of Schedule 1.

…

CHAPTER 9

Maternity Benefit

Entitlement to and duration of benefit.

47.—(1) Subject to this Act, a woman shall be entitled to maternity benefit where—

(a) it is certified by a registered medical practitioner or otherwise to the satisfaction of the Minister that it is to be expected that the woman will be confined in a week specified in the certificate (hereafter in this section referred to as “the expected week of confinement”) not being more than the prescribed number of weeks after that in which the certificate is given, or it is certified by a registered medical practitioner or otherwise to the satisfaction of the Minister that a woman has been confined,

(b) in the case of an employed contributor, it is certified by the woman’s employer that she is entitled to maternity leave under section 8 of the Maternity Protection Act 1994, and

(c) subject to subsection (2), she satisfies the contribution conditions in section 48.

…

Conditions for receipt.

48. —The contribution conditions for maternity benefit are—

(a) in the case of an employed contributor—

(i)(I) that the claimant has qualifying contributions in respect of not less than 39 contribution weeks in the period beginning with her entry into insurance and ending immediately before the relevant day, and

(II)(A) that the claimant has qualifying contributions or credited contributions in respect of not less than 39 contribution weeks in the second last complete contribution year before the beginning of the benefit year in which the relevant day occurs or in a subsequent complete contribution year before the relevant day, or

(B) that the claimant has qualifying contributions in respect of not less than 26 contribution weeks in each of the second last and third last complete contribution years before the beginning of the benefit year in which the relevant day occurs,

or

(ii) that the claimant has qualifying contributions in respect of not less than 39 contribution weeks in the 12 months immediately before the relevant day, or having been in insurable self-employment, she satisfies the contribution conditions in paragraph (b),

…

Disqualifications .

50. – Regulations may provide for disqualifying a woman for receiving maternity benefit where —

(a) during the period for which the benefit is payable, she engages in any form of insurable employment, insurable (occupational injuries) employment, insurable self-employment, any employment referred to in paragraph 1, 2, 3 or 6 of Part 2 of Schedule 1 or any self-employment referred to in paragraph 1 or 5 of Part 3 of Schedule 1, or

(b) she fails, without good cause, to attend for or to submit herself to any medical examination that may be required in accordance with regulations made under this section.

…

SCHEDULE 1

EMPLOYMENTS, EXCEPTED EMPLOYMENTS AND EXCEPTED SELF-EMPLOYED CONTRIBUTORS

PART 1

EMPLOYMENTS

1. Employment in the State under a contract of service or apprenticeship, written or oral, whether expressed or implied, and whether the employed person is paid by the employer or some other person, and whether under one or more employers and whether paid by time or by the piece or partly by time and partly by the piece, or otherwise or without any money payment.

2. Employment under such a contract referred to in paragraph 1—

(a) as master or a member of the crew of—

(i) any ship registered in the State, or

(ii) any other ship or vessel of which the owner or, where there is more than one owner, the managing owner or manager, resides or has his or her principal place of business in the State, or

(b) as captain or a member of the crew of—

(i) any aircraft registered in the State, or

(ii) any other aircraft of which the owner or, where there is more than one owner, the managing owner or manager, resides or has his or her principal place of business in the State.

2A.(a) Employment, between 1 January 2007 and 31 December 2011, under a contract referred to in paragraph 1 by—

(i) a national of the Republic of Bulgaria or Romania, or

(ii) a permitted family member or qualifying family member of a national of the Republic of Bulgaria or Romania, whether or not such employment was in accordance with an employment permit referred to in section 2(1) of the Employment Permits Act 2003.

…

SCHEDULE 1

PART 2

EXCEPTED Employments

1. Employment in the service of the husband, wife spouse or civil partner of the employed person.

2. Employment of a casual nature otherwise than for the purposes of the employer’s trade or business, and otherwise than for the purposes of any game or recreation where the persons employed are engaged or paid through a club.

3. Employment by a prescribed relative of the employed person, being either employment in the common home of the employer and the employed person or employment specified by regulations as corresponding to employment in the common home of the employer and the employed person.

4. Employment specified in regulations as being of such a nature that it is ordinarily adopted as subsidiary employment only and not as the principal means of livelihood.

5. Employment specified in regulations as being of inconsiderable extent.

6. Employment under a scheme provided by the Minister and known as Community Employment, where that employment began before 6 April 1996.

7. Employment in the State in a company under a written or an oral contract of service, whether expressed or implied, where the employed person is—

(a) the beneficial owner of that company, or

(b) able to control 50 per cent or more of the ordinary share capital of that company,

either directly or through the medium of other companies or by any indirect means.

…

EMPLOYMENT PERMITS ACT 2003

…

Employment of non-nationals.

2.—(1) A foreign national shall not —

(a) enter the service of an employer in the State, or

(b) be in employment in the State,

except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(1A) Subsection (1)(b) applies whether the employment concerned results from —

the foreign national’s being employed in the State by a person,

(aa) the foreign national being employed outside the State by a foreign employer and being required by the foreign employer to carry out duties for, or participate in a training programme provided by, a person in the State who is connected to the foreign employer,

(b) his or her being employed by a person outside the State (the ‘contractor’) to perform duties in the State, the subject of an agreement between the contractor and another person, or

(c) any other arrangement.

(2) A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(2A) Where a person (the ‘first person’) enters into an agreement with another person (the ‘second person’) whereby the second person agrees to cause, or arrange for, services (whether of a specific or general kind) to be rendered on behalf of the first person and either —

(a) it is customary in the trade or business in which the agreement is entered into, or

(b) the circumstances in which the agreement is entered into are such that it must reasonably have been in the contemplation of the parties to the agreement,

that the means to be used by the second person for complying with the agreement would consist of or involve, in whole or part, the services being rendered by persons employed by a person other than the second person (and whether or not that person is in a contractual relationship with the second person) then, if those means are used, it shall be the duty of the first person to take the following steps.

(2B) Those steps are all such steps as are reasonable to ensure, in so far as one or more of the persons so employed is or are a foreign national or foreign nationals employed in the State for the purpose of rendering those services, that that foreign national or each of those foreign nationals is employed in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(2C) A person shall not permit a foreign national who is employed outside the State by a foreign employer to carry out duties for, or participate in a training programme provided by, that person where that person is connected to the foreign employer, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(3) A person who contravenes subsection (1), (2) or (2C) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) if the offence is an offence consisting of a contravention of subsection (2) or (2C) or a failure to take the steps specified in subsection (2B), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).

(4) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (2) or (2C) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (2) or (2C).

…

Civil proceedings

2B.(1) This section applies to a foreign national who, in contravention of section 2(1) —

(a) had entered the service of an employer in the State, or

(b) was in employment in the State,

without an employment permit granted by the Minister under section 8 of the Act of 2006 that was in force and who is no longer in such service or employment.

(2) Where an employer referred to in section 2(1)(a) or, in the case of employment referred to in section 2(1)(b), a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b) —

(a) has not paid a foreign national to whom this section applies an amount of money in respect of work done or services rendered during the period for which the foreign national was in the employment or service without an employment permit, or

(b) has paid an amount of money that was, having regard to the work done or services rendered during such period, an insufficient amount of money,

the foreign national or, in accordance with subsection (5), the Minister, may institute civil proceedings for an amount of money to recompense the foreign national for such work done or services rendered.

…

(12) The amount of money paid to a foreign national pursuant to an order under subsection (3) shall not be treated as reckonable emoluments within the meaning of the Social Welfare Consolidation Act 2005 for the purposes of that Act.

…

IMMIGRATION ACT 2004

…

Permission to land.

4.—(1) Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this Act as “a permission”).

Presence in State of non-nationals.

5.—(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given to him or her after such passing, by or on behalf of the Minister.

(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.

(3) This section does not apply to—

(a) a person whose application for asylum under the Act of 1996 is under consideration by the Minister,

(b) a refugee who is the holder of a declaration (within the meaning of that Act) which is in force,

(c) a member of the family of a refugee to whom section 18(3)( a) of that Act applies, or

(d) a programme refugee within the meaning of section 24 of that Act.

The relief sought by the applicant in the present proceedings
22. It is the aforementioned decision of 05 March 2020 which the applicant seeks to quash in the present proceedings. By order made on 03 June 2020, the applicant was granted leave to apply for the reliefs set out in para. D of the applicant’s statement of grounds, as filed on 03 June 2020, on the grounds set out at para. E of the said statement. The relief sought by the applicant is as follows: