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De Morais v Minister For Social Protection and Ors (Approved)
Summary of Judgment — High Court ([2026] IEHC 163)
Factual and Procedural Background
The Applicant is a Brazilian national who entered The State without permission in 2004. He worked for Company A from 2005 to 2011 and for Company B from 5 February 2012 until redundancy on 1 October 2021 when that employer became insolvent. The Applicant accepts he did not hold a valid work permit during the periods in issue. He lodged a claim for a redundancy payment from the central fund under the Redundancy Payments Act 1967 (and related legislation). The first Respondent treated the application as withdrawn for failure to furnish documentary proof and, on review, decided (27 December 2024) that the Applicant was not entitled to a payment because he was not in "insurable employment" under the Social Welfare Consolidation Act 2005, having lacked a work permit. The Applicant appealed to the Workplace Relations Commission (WRC), where the adjudicating officer held he lacked jurisdiction under s.39(15) of the 1967 Act. The Applicant obtained judicial review leave from the High Court (12 May 2025) and issued the present proceedings challenging the review decision of 27 December 2024. Judge Barr delivered the judgment on 20 March 2026.
Legal Issues Presented
- Whether the High Court should refuse relief in limine because the Applicant had an adequate alternative remedy via the statutory appeal route (WRC → Labour Court → High Court on a point of law).
- Whether Irish statutory provisions excluding undocumented workers from being treated as employees/being in insurable employment conflict with Directive 2008/94/EC (protection of employees in event of employer insolvency) and, if so, whether those provisions should be disapplied.
Arguments of the Parties
Applicant's Arguments
- The first Respondent ought to have disapplied Irish law to the extent it conflicted with Directive 2008/94/EC, entitling the Applicant to redundancy payment from the central fund.
- Pursuing further statutory appeals would be futile because the WRC had held it lacked jurisdiction on the central issue; judicial review was an appropriate means to obtain a substantive ruling.
Respondents' Arguments
- The court should exercise its discretion to refuse judicial review because the Applicant had an adequate alternative statutory appeal remedy (WRC → Labour Court → High Court on a point of law).
- The Directive permits Member States to define which workers are "employees"; under Irish law persons working without a valid work permit are not recognised as employees or in insurable employment and so fall outside the Directive's scope as implemented nationally.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sobhy v Chief Appeals Officer [2022] 1 IR 807 | Undocumented workers who worked without a valid work permit are not in insurable employment and are not employees for purposes of social welfare statutes; illegality doctrine and statutory scheme effect. | The court treated Sobhy as establishing that undocumented workers do not have a valid contract of service and therefore do not fall within national definitions of "employee" or "insurable employment." |
| Tumer v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Case C-311/13) | Under the Directive (and earlier Directive 80/987), Member States may not apply national rules so as to deny insolvency protection to persons who are regarded as employees under national civil law. | The court distinguished Tumer: Tumer forbids excluding from Directive protection persons who are nationally recognised as employees; because Irish law does not so recognise undocumented workers, Tumer did not require a different outcome here. |
| FAS v Minister for Social Welfare (Unreported, Supreme Court 23 May 1995) | Principles concerning illegality of contracts and the court's refusal to enforce contracts prohibited by statute. | Referenced as supporting authority for the common law position that rights do not flow from illegal contracts; used to support conclusion that undocumented employment cannot found social welfare entitlements absent statutory provision. |
| Langton v Hughes [1813] 1 M&S 593 | Historical common law authority on illegality of contracts. | Referenced as part of the historical authority supporting the principle that courts will not enforce illegal contracts. |
| Weatherell v Jones [1832] 3 B&Ad 221 | Historical common law authority on illegality of contracts. | Referenced alongside Langton as supporting the illegality principle applied in social welfare context. |
| Hussein v The Labour Court [2012] 2 IR 704 | Illustrates the unfairness of statutory illegality in employment law and judicial treatment of undocumented worker claims pre-legislative amendments. | Used to show prior recognition of exploitative results of illegality and legislative responses; supports Sobhy and the conclusion that contracts without permits are substantively illegal absent statutory remedy. |
| Petecel v Minister for Social Protection [2024] 2 IR 685 | Scope and limits of High Court jurisdiction on an appeal on a point of law from statutory bodies. | Applied in assessing why an appeal on a point of law would not have given the Applicant the substantive determination sought and supported the decision to permit judicial review. |
| Stefan v Minister for Justice [2001] 4 IR 203 | Discretion to grant judicial review notwithstanding existence of alternative remedies where justice requires it. | Relied on to confirm that the presence of an alternative remedy does not automatically bar judicial review and that the court may grant relief in appropriate cases. |
| McGoldrick v An Bord Pleanála [1997] 1 IR 497 | Which remedy is more appropriate where an alternative remedy exists; considerations of common sense and fairness. | Referred to in weighing whether the statutory route was adequate versus judicial review in the circumstances of this case. |
| EMI Records v Data Protection Commissioner [2014] ILRM 225 | Default position that statutory appeals should ordinarily be pursued; exceptions where justice requires judicial review. | Used to frame the starting point and exceptions when deciding to permit judicial review despite statutory appeal mechanisms. |
| Fitzgibbon v Law Society of Ireland [2015] 1 IR 516 | Categorisation of types of statutory appeals and their scope. | Referenced in relation to the narrowness of an appeal on a point of law to the High Court. |
Court's Reasoning and Analysis
The court addressed two stages: first, the discretion whether to allow judicial review despite available statutory appeals; second, the substantive compatibility of Irish law with Directive 2008/94/EC.
On the discretion point, the court concluded judicial review was appropriate. The WRC had already held it lacked jurisdiction under s.39(15) of the 1967 Act; further pursuit of the statutory route would have been futile as any High Court appeal would be confined to the jurisdictional/point-of-law issue and would not decide the substantive conflict with the Directive. Authorities (The State (Abenglen Properties Ltd) v Dublin Corporation; Stefan; McGoldrick; EMI Records; Petecel) support that the existence of an alternative remedy is a factor, not an absolute bar, and justice may require judicial review.
On the substantive issue, the court analysed Directive 2008/94/EC (and Tumer) against Irish statutory law and the Supreme Court decision in Sobhy. Sobhy establishes that employment without a valid work permit is substantively illegal for social welfare purposes and such persons are not "employees" or in "insurable employment" under Irish law absent statutory provision. Tumer holds that a Member State may not deny Directive protection to persons whom its national civil law recognises as employees. The court held these authorities together mean that Tumer requires protection only where national law already recognises the person as an employee; because under Irish law undocumented workers are not so recognised, the Directive did not compel disapplication of the Irish statutes. The court therefore found no conflict requiring disapplication and concluded the decision-maker correctly found no entitlement to redundancy payments.
Holding and Implications
RELIEF REFUSED
Holding: The court refused the Applicant's claim for certiorari and denied the reliefs sought, upholding the first Respondent's original and review decisions that the Applicant was not in insurable employment and was not entitled to redundancy payments from the central fund.
Implications: The direct effect is that the Applicant's challenge fails and he remains ineligible for the redundancy payment under the 1967 Act and the 1984 Act for the period in question. The court held that no referral to the CJEU was necessary and did not identify a new precedent altering the established position in Sobhy; the decision affirms that, under current Irish law, undocumented workers who worked without a valid work permit do not fall within the national definition of "employee" for purposes of the Directive and the social welfare code.
Prepared from the judgment delivered by Judge Barr on 20 March 2026. All party and entity names in the narrative are anonymised consistent with the source text and summary requirements.
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