“Will Not Be Issued” v. “Cannot Be Issued”
Singh v. Minister for Enterprise, Trade and Employment ([2025] IEHC 383)

Introduction

In Singh v. Minister for Enterprise, Trade and Employment the High Court (Bradley J.) addressed the limits of ministerial discretion to refuse an Employment Permit where an applicant is undocumented (i.e. present in the State without immigration permission). The case revisits and distinguishes three recent High Court authorities—Ling & Yip, Yeasin and P—which had condemned decision-letters stating that a permit “cannot be issued” or “it was not possible” once the undocumented status of the applicant was identified.

Bradley J. re-affirms that s.12(1)(i) of the Employment Permits Act 2006 vests a discretionary power in the Minister, but concludes that in the present facts that discretion was lawfully exercised. The Court holds that (i) the phrase “will not be issued” reflected an actual exercise of choice, not a fettering; (ii) the decision contained adequate reasons; and (iii) merely applying for an employment permit does not, in itself, constitute evidence of efforts to regularise immigration status. Accordingly, the application for judicial review was refused.

Summary of the Judgment

• The applicant, a South African national, overstayed a short-stay visa and later sought a General Employment Permit.
• The Minister rejected the application and two subsequent internal reviews, relying on s.12(1)(i): the applicant was in the State “without permission”.
• On judicial review the applicant alleged (a) unlawful fettering of discretion, and (b) inadequate / irrational reasons.
• Bradley J. distinguished earlier cases where the Department had mischaracterised the discretion as non-existent; here the decision explicitly weighed the facts and used the language “will not be issued”, demonstrating an evaluative choice.
• The Court found the Minister’s reasons sufficient: the applicant supplied no evidence of attempts to regularise status beyond the permit application itself.
• Relief was refused; costs were adjourned.

Analysis

1. Precedents Cited and Their Influence

1. Ling & Yip Ltd v. Minister for Business, Enterprise and Innovation ([2018] IEHC 546)—Noonan J. held that stating an employment permit “cannot be issued” purely because of undocumented status amounted to an abdication of discretion. Bradley J. accepts that principle but distinguishes Singh: “will not be issued” is different in both wording and context.
2. Yeasin v. Minister for Business, Enterprise and Innovation ([2021] IEHC 821)—Meenan J. equated “it was not possible” with “cannot be issued”; again, Singh was said to lie outside this error.
3. P v. Minister for Business, Enterprise and Innovation ([2021] IEHC 609)—Barrett J. quashed a decision that lacked reasons and appeared policy-driven. Bradley J. contrasts the rich reasoning and factual context in Singh, where the applicant offered no special mitigating facts.
4. Connelly v. An Bord Pleanála ([2018] IESC 31)—Supreme Court authority on the common-law duty to give reasons; used to gauge adequacy of the Minister’s letter.
5. East Donegal Co-operative Livestock Mart Ltd v. Attorney General ([1970] I.R. 317)—Classic statement on the duty to exercise discretionary statutory powers fairly.

2. Legal Reasoning of the Court

The reasoning proceeds in three steps:

1. Textual Analysis of s.12(1)(i)
   The subsection says the Minister may refuse a permit if the applicant “is or has been in the State without permission”. The permissive term “may” imports discretion. Bradley J. stresses that the legislature deliberately did not impose a mandatory bar.
2. Discretion Was in Fact Exercised
   Unlike the defective letters in earlier cases, the impugned decision:
   • Explicitly records a review of “all the circumstances of the application”.
   • Uses the future-tense evaluative phrase “will not be issued”.
   • Explains why (undocumented, no steps taken to regularise).
   Therefore the Court sees evidence of a genuine weighing of factors.
3. Reasons Adequate and Rational
   Under Connelly, reasons need only be intelligible and sufficient to enable a disappointed party to understand why he lost and to allow a court to review the decision. The letter met that threshold. It was not irrational (under the O’Keeffe standard) for the Minister to decide that an application alone does not amount to meaningful regularisation.

3. Potential Impact

• Clarifies Language Thresholds: Departments must still avoid “cannot be issued”, but “will not be issued” will be lawful if anchored in discernible reasoning.
• Raises Evidentiary Burden on Applicants: Undocumented applicants now know they must show affirmative steps (e.g., visa renewal attempts, residence applications, engagement with INIS) beyond the permit application itself.
• Administrative Law Guidance: Confirms that the adequacy-of-reasons doctrine is fact-sensitive; verbose letters are not required if the core rationale is clear.
• Separation of Functions: The Court implicitly rejects the argument that the Employment Permit process should ignore immigration compliance; the Minister is entitled to ask about efforts to regularise status.

Complex Concepts Simplified

Fettering of Discretion

Public‐law decision-makers must actually consider each case; they commit a legal error if they treat a discretionary power as if it were mandatory (“rubber-stamp”). Saying “cannot be issued” because a condition arises usually signals such an error.

Judicial Review

A procedure where the High Court checks whether a public decision was lawful, reasonable, and followed fair procedures. It does not re-decide the merits.

Irrationality / O’Keeffe Standard

A decision is quashed for irrationality only if it is fundamentally unreasonable—“plainly and unambiguously wrong”—not merely debatable.

Adequate Reasons

The decision-maker must give reasons that are clear enough for the affected person to know why they lost, and for a court to review the legality. It is not a requirement to address every submission or to write like a judgment.

Conclusion

Singh crystallises the boundary between improperly fettered and properly exercised discretion under s.12(1)(i) of the Employment Permits Act 2006. The High Court confirms that:

• Language matters: “will not be issued” can reflect a valid choice; “cannot be issued” or “it was not possible” may betray an unlawful rigidity.
• Applicants who are undocumented bear the onus of demonstrating concrete steps toward immigration regularisation; a permit application, standing alone, will rarely suffice.
• A concise but focused statement of reasons passes muster if it discloses the key factual findings and the statutory hook.

Practitioners should advise clients that while undocumented status no longer triggers an automatic ban (post-Ling line of cases), success still hinges on presenting a compelling, evidence-based narrative showing why the Minister should exercise the residual discretion favourably. Singh therefore preserves Ministerial flexibility, clarifies administrative drafting standards, and rebalances expectations for future permit litigation.