In August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.
For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.
In setting aside the decision of the High Court, Murray J. in the Supreme Court noted:
[N]o application was made and no leave granted for a judicial review of the decision of the Rights Commissioner which awarded the sums in question to the notice party as a consequence of his finding of a breach by the applicant of his lawful obligations as an employer.
Mr Hussein had an opportunity to appeal, within time limits, the determination of the Rights Commissioner, but did not do so. The only role of the Labour Court therefore was to approve the decision of the Rights Commissioner . The role of the High Court was therefore strictly limited to considering whether the determinations of the Labour Court were issued properly. The Supreme Court stated that the procedure adopted by the Labour Court was in compliance with the 1997 Act and the 2000 Act. As Murray J notes at para. 37 of his decision:
Mr. Younis, the notice party, made complaints and a claim against the applicant, Mr. Hussein. Before he could be denied his remedies before the Rights Commissioner on the grounds that his employment was illegal the fact that he did not have a work permit when employed would have to have been established and a finding to that effect made. There was no such finding. Apart from bringing an appeal on the merits to the Labour Court, the applicant could have judicially reviewed the decision of the Rights Commissioner if he could establish that the evidence before him was such that he had been compelled to make such a finding of fact on a consequential finding on the legality of the employment. Of course, the decision was neither appealed nor any judicial review sought upon such a basis.
The Labour Court acted within its jurisdiction and powers in issuing the September 2011 determinations.The High Court, by making enquires into the irregular status of the Mr Younis, had exceeded its jurisdiction (i.e. ensuring compliance with statutory obligations by the Labour Court). Hogan J. in the High Court therefore should not have concered himself with the question of the irregularity in Mr Younis’ immigration status. By exceeding jurisdiction, the August 2012 decision of the High Court was fundamentally flawed.
The Supreme Court therefore upheld Mr Younis’ awards of €5,000 and €86,134.42. The Migrant Rights Centre of Ireland, who assisted Mr. Younis issued a press release, where Mr Younis said:
“I am very happy and I want to thank all my supporters. After six years, I’ve finally got justice. The next step is to get the €92,634.42 that is owed to me.”
Whether therefore the rationale that Hogan J. used in his August 2012 decision on irregular migrant workers and employment contracts stands, remains to be seen. As Gráinne O’Toole (MRCI) has said, reacting to the Supreme Court decision:
“The High Court judgment essentially gave unscrupulous employers a license to exploit undocumented workers with impunity.
The Supreme Court were cautious of entering into too much analysis of Hogan J.’s decision, beyond the jurisdictional issues. However, Murray J. did seem to indicate that the Supreme Court may not have necessarily agreed with Hogan J’s substantive analysis of irregular migrants and employment contracts. Murray J. (at para 52) did comment [my emphasis]:
With so many regulatory measures in the modern economy concerning employment relationships and the supply of goods and services, the circumstances in which a contractual relationship which gives rise to some form of illegality might be considered a ground for not enforcing it, is a complex one. Traditional judicial dicta, in the older cases in particular, may have to be reviewed or nuanced in the light of the modern regulatory environment, and applied with the principle of proportionality in mind. Since any issue of illegality concerning the employment relationship between the relevant parties in this case does not arise within the proper parameters of this judicial review, it is not necessary to address those issues (or other contingent issues) in any way.
While the Employment Permits (Amendment) Act 2014 may assist others who find themselves in Mr Younis’ position, the Supreme Court seemed weary of accepting the legal analysis of Hogan J. in his 2012 (now) overturned decision.