Ozkaya v Minister For Justice, Home Affairs and Migration

APPROVED [2026] IEHC 252 THE HIGH COURT JUDICIAL REVIEW 2024 721 JR BETWEEN OZCAN OZKAYA APPLICANT AND MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENT JUDGMENT of Mr. Justice Garrett Simons delivered on 30 April 2026 INTRODUCTION 1. The Applicant is a Turkish worker who has been granted a series of immigration permissions under domestic law. The principal dispute between the parties centres on the legal effect of the most recent of these immigration permissions. The Applicant contends that it authorised him to change employer; the Minister contends that the permission issued in error and, in any event, is subject to the 2 conditions attached to an earlier immigration permission which confined his employment to a specified employer. 2. The resolution of this dispute requires consideration of the interaction between the domestic law provisions governing immigration permissions and the directly applicable provisions of EU law. 3. For the reasons explained in this judgment, the parties are being directed to file supplemental submissions. TURKISH ASSOCIATION AGREEMENT 4. The Agreement establishing an Association between what was then the European Economic Community and Turkey was signed on 12 September 1963 in Ankara. The Turkish Association Agreement was concluded, approved and confirmed on behalf of the EEC by Council Decision 64/732/EEC of 23 December 1963. Article 12 provided that the Contracting Parties would be guided by Articles 48, 49 and 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers. The Additional Protocol of 23 November 1970 further developed this framework, with Article 36 tasking the Association Council with determining detailed rules for progressive implementation. Article 41(1) of the Additional Protocol contained a standstill clause regarding freedom of establishment and freedom to provide services. 5. On 19 September 1980, the Association Council adopted Decision No 1/80 on the development of the Association. 6. Article 6 of Decision No 1/80 provides as follows: (1) Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: 3 — shall be entitled in that Member State, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available; — shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation; — shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment. (2) Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment. (3) The procedures for applying paragraphs 1 and 2 shall be those established under national rules. 7. Save where otherwise indicated, all references in this judgment to an article of a legislative instrument are intended to refer to the corresponding article of Decision No 1/80. 8. The Court of Justice of the European Union (“CJEU”) has held that Article 6(1) has direct effect in the Member States (Sevince, Case C-192/89, EU:C:1990:322). The CJEU has also held that the right to employment necessarily implies a corollary right of residence, without which the employment right would be deprived of all effect (Kus, Case C-237/91, EU:C:1992:527). A Turkish national who fulfils the requirements of the first or third indent of Article 6(1) may rely directly on those provisions in order to obtain both the 4 renewal of his work permit and of his residence permit (Kus, Case C-237/91, EU:C:1992:527). 9. It should be explained that the Member States retain competence to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment. Decision No 1/80 is intended merely to regulate the situation of Turkish nationals who are already integrated into the labour force of the host Member State. Once a Turkish national has been employed for more than one year under a valid work permit, he or she must be regarded as fulfilling the conditions laid down in the first indent of Article 6(1). This is so notwithstanding that his residence permit may have been initially granted for a purpose other than that of engaging in paid employment (Kus, Case C-237/91, EU:C:1992:527). 10. Having regard to the factual background to the present proceedings, it is relevant to note that Turkish nationals who are initially permitted to enter a Member State for the purpose of education as students may nevertheless accrue employment rights under Article 6(1). This point has been decided in Payir, Akyuz and Ozturk, Case C-294/06, EU:C:2008:36. 11. The principles in Payir have been applied in this jurisdiction by the High Court (Burns J.) in Dogan v. Minister for Justice [2021] IEHC 692. There, the court rejected a suggestion, on behalf of the Minister, that the applicant in that case should be restricted to the entitlements of her student permission by reason of the fact that she had not indicated, when entering the State, that she would seek to rely on Decision No 1/80. 5 IRISH STATE’S IMPLEMENTING MEASURES 12. The Irish State requires Turkish nationals, who wish to avail of the employment rights and corresponding right of residence, to obtain a form of immigration permission. This entails the making of an application to the Department of Justice, Home Affairs and Migration. A decision on an application is made by a departmental official as the alter ego of the Minister pursuant to the Carltona principle. 13. In the event that such an application is successful, one of two outcomes will occur: (1). A migrant worker, who has completed less than three years’ legal employment, will be issued with a permission which allows him to continue to work for his current employer, and to reside in the Irish State, without the need for a work permit under the Employment Permits Act 2024; or (2). A migrant worker, who has completed three years’ legal employment, will be issued with a permission which allows him to work for any employer, and to reside in the Irish State, without the need for a work permit under the Employment Permits Act 2024. 14. As appears, the timeline under domestic law is more accelerated than that stipulated under EU law. Here, a migrant worker obtains the right to work for any employer after only three years’ legal employment, rather than four. The reason for this has been explained as follows in the affidavit filed on behalf of the Minister in related proceedings: Ozek v. Minister for Justice, Home Affairs and Migration [2026] IEHC 253. 6 15. The permissions issued by the Minister in respect of the Turkish Association Agreement have been modelled on the general system of numbered “stamps” used in other immigration contexts. This is an ad hoc numbering system whereby the bundle of rights attaching to a particular type of immigration permission has been allocated an individual identifying number. For example, an immigration permission issued to a student will be governed by “Stamp 2” conditions. These conditions allow the student to undertake paid employment, subject to a ceiling of 20 hours per week during term time, and 40 hours per week outside term time. The numbering system is capable of change in that the stamps are not defined in statute. 16. The rights progressively acquired under Decision No 1/80 do not map precisely to those allowed under the current numbering system. Relevantly, there is no numbered stamp with conditions equivalent to the status accorded, under the second indent of Article 6(1), to a migrant worker with more than three years, but less than four years, of legal employment. This status allows a migrant worker to be employed in a particular occupation, without being limited to a particular employer. This (second) step in the progression is, in effect, by-passed under domestic law. A migrant worker with three years’ legal employment is, instead, issued with an immigration permission subject to stamp conditions which accord with the rights consonant with those granted under the third indent of Article 6(1). PROCEDURAL HISTORY 17. The Applicant is a Turkish national. The Applicant first entered the Irish State on 8 December 2019 pursuant to a student immigration permission (Stamp 2). 7 This immigration permission allowed him to undertake paid employment, subject to a ceiling of 20 hours per week during the academic term, and 40 hours per week outside the academic term. 18. Insofar as relevant to these proceedings, the next event of significance occurred in October 2021. This is the date upon which the Applicant commenced employment for a company named Capel Kebab Ltd (trading as Ephesus Restaurant). 19. Thereafter, the Applicant submitted an application for a Stamp 1 permission in July 2022. The application was advanced on the premise that the Applicant had completed one year’s legal employment with the same employer and had thus accrued the rights referable to the first indent of Article 6(1) of Association Decision 1/80. In point of fact, the Applicant had ceased employment with Capel Kebab Ltd the week prior to the making of his application. The Applicant had commenced employment with a related company, Capel Cleaners Ltd. The Minister has since indicated that, in circumstances where the two employer- companies are closely connected, they have been treated as the same employer. 20. A decision to issue a Stamp 1 permission was made on 8 August 2022. Insofar as relevant to the present proceedings, the operative parts of the decision are as follows: “Following consideration of all the circumstances in your case, it is accepted that you are entitled to remain on Stamp 1 conditions for a period of one year from the date of this letter which will allow you to continue to work with your current employer Ephesus Restaurant and reside in Ireland without the need for a work permit. Your permission is subject to your compliance with certain conditions which are set out below. This permission begins from the date of this letter. […] 8 You have been granted temporary permission to remain on the basis of the conditions which attach to the grant of Stamp 1. An explanation of the general conditions attaching to a particular stamp may be found on http://www.inis.gov.ie. In your particular circumstances you have been granted permission for the purpose of continuing your employment in the State with Ephesus Restaurant under the terms of the Turkish Association Agreement. It should be noted that you are required by law under Section 9(2)(a) of the Immigration Act, 2004 to register this permission with your local Immigration Registration Officer as soon as may be. […] Please note that a failure to register promptly will be considered to constitute a failure to comply with the laws of the State and may constitute in itself a ground for revoking your permission to be in the State. […] Provided that the Garda National Immigration Bureau is satisfied that you have met the necessary requirements for registration, upon payment of the appropriate fee, you will be issued with a Certificate of Registration. The Certificate of Registration, together with this letter granting you temporary permission, will show which stamp you have received and the conditions attached to your permission. Please see above. The Certificate is an important document and you should keep it safely along with your original permission letter from the Immigration Service Delivery. You should note that any change in your circumstances which would affect the accuracy of your registration should be notified to your Registration Officer within 7 days of such change in circumstances. Please monitor the Immigration Service Delivery website for up to date information regarding registration. Further permission to remain can be sought without reference to this Office.” 21. Having regard to the indulgence shown by the Minister in relation to the change in employer from Capel Kebab Ltd to Capel Cleaners Ltd, the Applicant had been on track to acquire the additional employment rights referable to the third 9 indent of Article 6(1). As explained earlier, these rights are accelerated under domestic law and are granted after three years’ legal employment with the same employer. 22. In the event, however, the Applicant changed employer prior to his having completed three years’ legal employment with Capel Kebab Ltd / Capel Cleaners Ltd. The Applicant, instead, commenced to work for a different employer, Mr. Jose Alves, on 14 November 2022. For ease of exposition, the two employers will be referred to as “Employer A” and “Employer B”. 23. The Applicant, somewhat ambitiously, submitted an application for an immigration permission which would allow him work for any employer (Stamp 4 conditions). This application was, by letter dated 8 May 2023, deemed closed and not considered. (It was later described in the decision of 19 March 2024 as having been refused on 5 July 2023). 24. The Applicant next made an application to extend—to use a neutral term—the immigration permission which had been issued to him in August 2022. The legal effect of the documentation issued consequent upon this application is the principal matter in dispute in these proceedings. It is proposed, for present purposes, simply to set out a neutral narrative of the process. 25. It will be recalled that, at the time of his successful application for an immigration permission referable to the Turkish Association Agreement, the Applicant had been issued with a detailed decision setting out conditions. Relevantly, the decision stated that the Applicant was “to remain on Stamp 1 conditions for a period of one year from the date of this letter”. The decision concluded with a statement that “Further permission to remain can be sought without reference to this Office”. The decision also notes the legal requirement, 10 under section 9(2)(a) of the Immigration Act 2004, to register the immigration permission. 26. (It should be explained that the question of whether the wording of a similarly worded immigration permission acknowledges rights accrued prior to the date of decision is addressed in two other judgments delivered today: Ozek and Akkaya. However, this question is not relevant to the resolution of the present proceedings). 27. It appears from the exhibits in this case that an application to register an immigration permission entails the issuance of a photocard entitled “Irish Residence Permit” or “IRP card”. A residence permit of this type was issued to the Applicant on 19 August 2022. The residence permit bears the following endorsements: STAMP 1 PERMISSION TO WORK OR ENGAGE IN BUSINESS MUST HOLD A VALID WORK PERMIT OR PERMISSION 28. The Applicant made an application, via an online portal, to extend his immigration status. As part of the application, the Applicant uploaded copies of the following documents: his existing residence permit (IRP card); the immigration permission issued to him on 8 August 2022; and a letter from his current employer which stated that the Applicant had been employed by Jose Alves since 14 November 2022 and that the employment continued. 29. The Applicant was issued with a new residence permit (IRP card) on 19 August 2023. However, he does not appear to have been issued with a further immigration permission, notwithstanding that the immigration permission issued on 8 August 2022 had expired after twelve months. 11 30. The Applicant made an application on 7 January 2024 for an immigration permission which would allow him work for any employer (Stamp 4). 31. This application was refused by decision dated 19 March 2024. As part of this decision, the Minister considered and refused to grant an immigration permission which would allow the Applicant to work for his current employer, Mr. Alves. 32. The decision, in relevant part, reads as follows: “You applied for stamp l permission on 05/07/2022. This stamp l permission was granted on 08/08/2022. This permission was issued to you to continue your employment with Ephesus Restaurant / Capel Kebab House. You have, a part of your application of 07/01/2024 in your submitted Employer detail Summary, confirmed that you had ceased to work for Capel Kebab House on 30/06/2022. You have also submitted a letter from Taner Kara of Ephesus Restaurant (Capel Kebab House) that you ceased working for Capel Kebab on 03/07/2022. He also confirms that you worked for his cleaning company Capel Cleaning Ltd from 01/07/2022 to 25/11/2022. As you held a grant to continue to work for Ephesus Restaurant on 08/08/2022 and Mr Taner Kara was your legal employer in both the Capel Restaurant and Capel Cleaners, this department accepts that you were in valid legal employment up to the 13/11/2022. Any other employment other than for Mr Taner Kara after 13/11/2022 is not considered legal employment in the state. You are now applying for unlimited access to the labour market with a Stamp 4 under the Turkish Association Agreement. You have not provided evidence that you have been in legal employment for three years with a single employer. Therefore your application for stamp 4 is refused. You have also been considered for a stamp 1 permission. You have not provided evidence that you have been in continuous legal employment for one year with a single employer. Therefore an application for stamp 1 would also be refused. Please be advised that your work currently in the State is not Legal employment and therefore any employment beyond 12 the date you ceased employment with Capel Kebab House / Ephesus Restaurant ltd is not legal employment and cannot be counted towards any further Stamp 1 or Stamp 4 permission under The Turkish Association Agreement.” 33. This decision does not explain what is to happen to the unexpired period of the residence permit (IRP card) which had been issued to the Applicant on 19 August 2023. This residence permit was valid until 8 August 2024. A Member State only has a limited discretion to revoke an immigration permission granted to a Turkish national with retroactive effect. See, generally, Gülbahce, Case C-268/11, EU:C:2012:695. CHRONOLOGY 34. The key events in the chronology are summarised in tabular form below: 8 December 2019 Enters Irish State on student permission (Stamp 2) 19 December 2019 Registered on Stamp 2 26 February 2020 Commences employment at Zaytoon / Lorien Swords 30 October 2020 Ceases employment at Zaytoon / Lorien Swords 7 April 2021 Application for Stamp 1 permission 23 June 2021 Refusal 14 October 2021 Commences employment with Capel Kebab House 30 June 2022 Ceases employment with Capel Kebab House 1 July 2022 Commences employment with Capel Cleaners 5 July 2022 Application for Stamp 1 permission 8 August 2022 Stamp 1 permission granted Capel Kebab House (Ephesus Restaurant) 13 November 2022 Ceases employment with Capel Cleaners 14 November 2022 Commences employment with Jose Alves 13 28 April 2023 Application for Stamp 4 permission 8 May 2023 Stamp 4 application deemed closed 19 August 2023 Application for renewal Stamp 1 permission Irish Residence Permit issued, valid until 8 August 2024 7 January 2024 Application for Stamp 4 permission 19 March 2024 Stamp 4 refused Stamp 1 refused (“the impugned decision”) 4 June 2024 Judicial review proceedings filed in High Court 9 December 2025 Hearing date DISCUSSION 35. The Irish State has put in place the following administrative procedures to give practical effect to the Turkish Association Agreement. A Turkish national who has completed one year’s legal employment and seeks to assert his rights under the first indent of Article 6(1) is required to obtain the following documentation. First, an immigration permission pursuant to section 4 of the Immigration Act 2004. Second, a photocard, entitled an Irish Residence Permit or IRP card, which confirms that the immigration permission has been registered under section 9 of the Act. The two documents must be read together to ascertain the precise rights afforded to the migrant worker. 36. Crucially, the documents issued to migrant workers are time-limited, i.e. they are only valid for a specified period. On the facts of the present case, the immigration permission was valid for a one-year period beginning on 8 August 2022; the residence permit (IRP card) was valid from 19 August 2022 until 8 August 2023. This was so notwithstanding that the Applicant had accrued the 14 right, under EU law with direct effect, to continue to work for the first employer for a further period of two years. 37. It is necessary, therefore, for the Irish State to put in place an administrative process which allows for the issuance of further documentation upon the expiration of the first set of documentation. See Ozek (cited above). 38. Logically, any application for the issuance of up-to-date documentation should, if successful, eventuate in the issuance of both an immigration permission and a residence permit (IRP card). For reasons which have not been explained on affidavit, however, this is not the administrative process adopted in practice. Instead, a migrant worker is issued with a fresh residence permit, subject to a time-limit. This practice appears to overlook that the immigration permission has expired by effluxion of time. 39. The failure to issue a second immigration permission gives rise to a very real difficulty. It is apparent from the face of the second residence permit that it is intended to operate in conjunction with some other document. It is expressly stated that the cardholder must hold a valid work permit or (immigration) permission. Yet, there does not appear to be any document which evidences an “in date” immigration permission. Instead, the court is being invited to assume that a renewed immigration permission has issued in identical terms, save as to the date of expiration. The legal mechanism by which this result has supposedly been achieved has not been explained. Crucially, no explanation has been offered as to why it is that any immigration permission supposedly issued in August 2023 should be interpreted as being confined to employment with Employer A rather than Employer B in circumstances where the decision-maker 15 was on express notice that the Applicant had commenced employment with Employer B on 14 November 2022. 40. These issues have not been fully addressed to date in either the affidavit evidence or the submissions in the proceedings. The court is not in a position to resolve this issue fairly without further input from the parties. Accordingly, the parties are directed to file supplemental legal submissions addressing these legal issues. The parties also have liberty to file further affidavits. 41. The Minister’s side are directed to go first, as it is necessary for the Applicant to understand the legal mechanism by which it is asserted that a further immigration permission issued. 42. To avoid any further delay in the resolution of the proceedings, the parties are also directed to address, de bene esse, the question of a reference to the CJEU for a preliminary ruling pursuant to Article 267 TFEU. The question of a reference will only arise for determination in the event that the court were to find in favour of the Applicant on the anterior question of whether the national competent authority did, in fact, authorise a change of employer. 43. The supplemental submissions should address whether a reference should be made to the CJEU on the following issue. What legal consequences arise from the following employment history: A Turkish national, having completed one year of legal employment with Employer A, is granted permission by the competent national authority to continue in employment with Employer B at a time prior to his completion of the three years’ legal employment with Employer A? 16 In particular, is the migrant worker’s progress towards the accrual of the rights referable to the second and third indents of Article 6(1) of Decision 1/80 (made pursuant to the Turkish Association Agreement) to be calculated by reference to the cumulative time served with Employer A and Employer B? CONCLUSION AND ORDER 44. The following timetable applies to the filing of the supplemental submissions and affidavit evidence. The Minister’s side are to file their supplemental submissions and any further affidavit evidence within five working weeks from 30 April 2026 (excluding the Whit Vacation). This period expires on 15 June 2026. The Applicant’s side have five working weeks thereafter to file their responding supplemental submissions and any affidavit evidence. This period expires on 20 July 2026. 45. The proceedings will be listed, for mention only, on 21 July 2026 to fix a date for the resumed hearing. Appearances Conor Power SC and Niamh Harnett for the applicant instructed by Cathal N. Young, O’Reilly & Co. Mark J Dunne SC and Colmcille Kitson for the respondent instructed by the Chief State Solicitor