|Muhammad Younis. Picture by RTE.|
Liam Thornton has an excellent post over at humanrights.ie summarising the issues, particularly focusing on the international human rights dimension of the case.
While we are still digesting the judgment as it has only recently been published, some additional points which have struck me are as follows:
- Hogan J. says at para. 19 that the Employment Permits Act 2003 contains no saving clause such as obtains in the case of unfair dismissals. However, the National Minimum Wage Act 2000 does contain a saving clause at s.40. While it is likely that even if he had referred to this section, he would have reached the same conclusion, it is surprising that he does not explicitly address it.
- Hogan J. does not refer explicitly to the significant Irish employment law case of Lewis v Squash Ireland  ILRM 363. In that case, the Tribunal stated: "It is public policy that the Courts and this Tribunal should not lend themselves to the enforcement of contracts, either illegal on their face or in which the intended performance of obligations thereunder was illegal to the knowledge of the party seeking to enforce the contract" (emphasis added). Hogan J. could have explored whether he agreed with such a statement of public policy by the EAT, rather than relying entirely on court decisions. While of course the courts have superior authority to the tribunals, they have also recognised the specialist expertise of such tribunals in the past.
- Hogan J. also does not refer to Dubyna v Hourican Hygiene (2005) UD 781/2004, another EAT case in which it was found that a contract in breach of the Employment Permits Act 2003 was enforceable where the employee was unaware of the breach. Admittedly, the circumstances were quite different but nonetheless it is a more relevant decision than some of those cited in the High Court decision.
- As far as I can see, the only English case referred to is from 1957. There is no reference to the recent Court of Appeal case of Hounga v Allen  EWCA Civ 609 which involved breach of work permits legislation. While the court did not permit the claim in that case, it allowed for the possibility that in some cases an employee might not be an active participant in an illegality, but instead acquiesce in the state of affairs, in which case she might still claim. (See Laurie Anstis posting on Daniel Barnett blog here.) [Update in 2014: The UK Supreme Court has upheld the appeal against the Court of Appeal decision - Hounga v Allen  UKSC 47 - See Vanessa James posting on Daniel Barnett blog here.]
- I am not entirely comfortable with the idea of the High Court posting copies of its decisions to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation. I agree that a judge may highlight a possible anomaly in the law, or possible unintended consequences of legislation, and even state that the law should be changed (as happened in the X. case). But it is unnecessary and perhaps could be misinterpreted for the judge to post the decision to these three people. They are all surely aware of the decision, as they are aware of all court decisions. Perhaps I am splitting hairs here?
[Further Update in 2014 - The Employment Permits (Amendment) Act 2014 will allow a migrant worker in Mr Younis's situation to bring a civil action seeking compensation for work done. The Act will come into force on a date specified by the Minister. The new Act was welcomed by Migrant Rights Centre Ireland here. However, as the Centre notes, much more needs to be done. From an employment law perspective, it is unclear to what extent a migrant worker without a work permit could bring an action other than an action seeking compensation for work done. ]