About this case:

• Citation:
  [2021] IESC 81
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Marie Baker

Delivering judgment in the case, Ms Justice Marie Baker held that the woman’s contract was in breach of a criminal prohibition on working without a permit in the State. Accordingly, it was held that the woman’s contract did not qualify for payment under the social welfare code.

Background

The applicant arrived in Ireland in 2008 under a scheme designed for foreign students. She lived and worked lawfully in the State until 2012. However, the scheme eventually required her to apply for a change of status and both of her applications were rejected.

The applicant continued to work in Ireland as a chef without a work permit between 2012 and 2019. During this entire period, the applicant paid PAYE tax and her employer made PSRI contributions.

The applicant was eight months pregnant in December 2018 and took maternity leave from her job. Her immigration status was regularised in April 2019 following the decision in Luximon v. Minister for Justice and Equality [2018] IESC 24, so she applied for maternity leave. The Department of Employment Affairs and Social Protection refused the application.

The deciding officer ruled that it had been illegal for the applicant to engage in employment prior to holding a valid work permit. As such, it was said that the applicant’s contributions to PAYE and PRSI did not provide an entitlement to social welfare payments.

The decision was affirmed by the Chief Appeals Officer in March 2020. The applicant later took judicial review proceedings. The High Court quashed the decision on the basis that it was not “self-evident” that a person with a work permit could not meet the requirements of the Social Welfare Consolidation Act 2005.

In particular, the court held that a more nuanced and flexible approach had to be taken to the enforceability of illegal contracts in light of the judgment in Quinn v. IBRC [2015] IESC 29. The State respondents appealed the decision and were granted a leapfrog appeal to the Supreme Court.

The respondents submitted that the Employment Permits Act 2003 made it illegal to work in the State without a work permit. It was a criminal offence for both an employee and employer to engage in such a practice.

It was argued that the fundamentally illegal nature of the applicant’s contract meant that it was excluded from the statutory welfare scheme under the 2005 Act. It was also argued that section 5 of the Immigration Act 2004 provided that a non-national who was in the State without permission was unlawfully present “for all purposes.”

In response, the applicant relied on Quinn v. IBRC and argued that an illegal contract was not to be considered unenforceable or void for all purposes.

Supreme Court

Ms Justice Baker began by outlining the legislative provisions under the relevant Acts, noting that none of the Acts made reference to the others. The court stated that it was difficult to interpret the broader social welfare code without express links between the Acts.

The court held that the qualifying requirements for maternity benefits were that a person be employed in the State under a contract of service and that PSRI contributions be made for the relevant period.

As such, the court stated that the “net question for consideration is whether [the applicant’s] employment was insurable under the social welfare legislative provisions or whether her employment, being as it was without a work permit, is capable of being treated as insurable or her contributions treated as qualifying.”

In its analysis of the case, the court considered the case law on illegal contracts in Ireland. In Foras Áiseanna Saothair v. Abbott (unreported, Supreme Court, Egan J., 23 May 1995), it was held that a contract which was prohibited by statute could not be termed a “contract of service” within the meaning of the relevant social welfare legislation. Further, the court considered older authorities which outlined the general proposition that the a court “will not lend itself to the enforcement of an illegal contract” (see Martin v. Galbraith Ltd. [1942] I.R. 37 and Wetherell v. Jones (1832) 3 B. & Ad. 221).

The court also considered Hussein v. The Labour Court [2012] IEHC 364 which concerned a decision that an illegally employed foreign worker was unable to sue their employer for unpaid wages. Mr Justice Gerard Hogan stated his disquiet at the potential for vulnerable workers to be taken advantage of by unscrupulous employers.

Ms Justice Baker noted that legislative amendments had been made to ameliorate the situation identified in Hussein and that, in fact, the Oireachtas had engaged in statutory intervention in distinct scenarios involving unlawfully employed people.

Having considered the case law, the court held that the present case did not concern the enforcement of a contract, but instead related to welfare entitlements. Accordingly, the court rejected the contention that there was any sort of contractual relationship between the State and the applicant. The court said: “The element of mutual promises, whether supported by separate consideration or the mutuality of the promises, is missing.”

The court also highlighted the legislative choice to impose a criminal sanction for employees and employers who worked without a permit. In light of all the legislative provisions, the court held that the applicant’s contract was illegal and did not qualify as a contract of service for social welfare. The court stated that there was a public policy aspect to the regulation of immigration and work in the State.

The court accepted the decision in Quinn v. IBRC which held that a more nuanced approach should be taken to illegality in contracts. The court asked whether, despite the illegality of the contract, a collateral matter (in this case, social welfare) could be maintained. The court stated that there was a public policy aspect to the regulation of immigration and work in the State, which would be undercut if the applicant’s claim succeeded.

The court was required to protect the objects and policies contained in the 2003 and 2004 Acts, Ms Justice Baker said. As such, the court allowed the appeal and upheld the decision of the Chief Appeals Officer.

Conclusion

In light of these conclusions, the court held that it was not necessary to remit the matter for further consideration. It was noted that the State accepted it was required to refund the PAYE and PRSI payments to the applicant.

Finally, the court commented that the decision “could perhaps unwittingly make it once again attractive for an employer to employ an undocumented person.” As such, the court said further legislative intervention may be necessary.