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  De Morais v Minister For Social Protection and Ors (Approved) [2026] IEHC 163 (20 March 2026)

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?THE HIGH COURT

[2026] IEHC 163

[Record No. 2025/397JR]

BETWEEN

NILTON DE MORAIS

APPLICANT

AND

---

MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL, AND THE MINISTER FOR TRADE, ENTERPRISE & EMPLOYMENT

RESPONDENTS

---

JUDGMENT of Mr. Justice Barr delivered electronically on the 20 th day of March 2026.

Introduction.

1. The applicant is a Brazilian national. He is 46 years of age. He entered the State illegally in 2004. He obtained work with a company from 2005 to 2011. Latterly, he obtained work with another company from 2012 to 2021. He was made redundant when that company ceased trading in October 2021.

2. The applicant accepts that during the periods of his employment he did not have a right to reside in the State; nor did he have any permission to work in the State (hereinafter 'a work permit') issued pursuant to the Employment Permits Act 2003, as amended, (since repealed and replaced by the Employment Permits Act 2024).

3. In these proceedings he challenges the review decision of the first respondent dated 27 December 2024 which upheld an earlier decision of the respondent that he was not entitled to a redundancy payment from the central fund pursuant to the Redundancy Payments Act 1967, as amended, or the Protection of Employees (Employers Insolvency) Act 1984, because he was not in ' insurable employment ' for the purposes of the Social Welfare Consolidation Act 2005 when he was working for the company between 2012 and 2021.

4. The applicant submits that insofar as he was held not to have an entitlement to receive a redundancy payment from the fund due to his failure to hold a work permit at the relevant time, the first respondent ought to have disapplied Irish law as it conflicted with the provisions of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (hereinafter 'the Directive'). The applicant seeks an order of certiorari setting aside the review decision of the first respondent dated 27 December 2024.

5. The respondents object to the grant of the reliefs sought by the applicant on two main grounds: first, that the court should exercise its discretion to refuse relief on the ground that the applicant has an adequate alternative remedy in the form of an appeal from the decision of the first respondent to the WRC; and thereafter to the Labour Court; thence to the High Court on a point of law.

6. Secondly, it was submitted that the first respondent did not err in his decision because the Directive provides that Member States may define which workers come within the definition of 'employees'. It was submitted that in Irish law people who work without having a valid work permit are not recognised as being employed under a contract of service and are therefore not in ' insurable employment ' for the purposes of the 2005 Act; and are therefore not ' employees ' and are not entitled to receive redundancy payments under the 1967 Act or the 1984 Act.

7. It was submitted that the applicant did not come within the provisions of the Directive and therefore there was no question of the decision-maker having to disapply Irish law as being in conflict with the provisions of the Directive. On these grounds it was submitted that the court should refuse the reliefs sought by the applicant in his notice of motion.

8. Thus, there are two issues that arise for determination in these proceedings. These are: first, whether relief should be refused in limine because there is an adequate alternative remedy open to the applicant under the legislation; and secondly, whether the Irish legislative provisions in relation to the entitlement of what may be termed undocumented workers to receive redundancy payments, are in conflict with the provisions of the Directive and on that basis ought to be disapplied.

Background.

9. The background to these proceedings can be briefly stated as follows: as already noted, the applicant arrived in the State in 2004. He had no permission to enter the State, or to reside in it, or to work in the State. In his affidavit sworn on 20 March 2025, he candidly stated: " I absolutely accept that I didn't have a permit to work but I genuinely thought of my employment as lawful as I paid tax and social insurance to the State for the duration of that employment. "

10. In 2005, the applicant obtained employment with a company called Control Air Limited. He was made redundant in 2011. His employer was insolvent. The applicant received a payment from the Department of Social Protection under the Redundancy Payments Scheme.

11. On 5 February 2012, the applicant commenced working with Advertising Pens Limited. During this period of employment, the applicant received wages and paid tax under the PAYE system. He also paid PRSI and USC contributions. In March 2020, when the lockdown was imposed due to Covid 19, the applicant was placed on layoff. From 20 March 2020 to October 2021, the applicant received the pandemic unemployment payment.  On 1 October 2021, the applicant was made redundant. His employer had become insolvent. The applicant maintains that he had 18.13 years reckonable service, which amounted to a redundancy entitlement of 17.26 weeks wages, which was estimated to amount to an entitlement to a redundancy payment of ?10,356.

12. On 21 October 2021, the applicant filled out a Redundancy Payment Scheme Employee Declaration seeking payment of this amount from the central fund. Subsequent to the lodgement of that application, the applicant was requested by the first respondent to furnish supporting documentation. He did not comply with that request.

13. On 10 October 2022, the applicant obtained a 'Stamp 4' permission to remain in the State under the Regularisation of Longterm Undocumented Migrant Scheme.

14. By letter dated 26 October 2022, the applicant was informed by the first respondent that his application for a redundancy payment had been withdrawn, due to his failure to furnish the requested documents. The applicant states that on 23 October 2022, he had sent his GNIB number by email to the respondent. On 28 October 2022, the first respondent requested further documentation. The applicant sent further documentation on 4 November 2022.

15. The applicant states that in or about November 2022, he made contact with the Migrant Rights Centre (MRCI), which is an NGO that supports migrant workers with advice. He states that he was advised by the MRCI that he might have a right to a redundancy payment under EU law.

16. By letter dated 21 December 2022, the applicant sought a review of the earlier decision which had deemed his application for redundancy payment as being withdrawn.

17. On 23 January 2023, the first respondent gave its decision on the review. The decision stated that where an employer was insolvent, an employee who had been made redundant could make a claim to the first respondent for payment under the Redundancy Payment Scheme. All such claims are subject to the conditions and limits laid out in the Redundancy Payments Act 1967, as amended. The decision went on to state that the decision maker was satisfied that the applicant's application had been correctly processed and that he was not entitled to a payment under the scheme. The essential rationale for that decision was stated in the following way:

" A person who does not have a valid work permit as required under the Employment Permits Act 2003 is not in insurable employment for the purpose of the Social Welfare Consolidation Act 2005.

You were requested on several occasions to provide copies of your employment permits for the period when you were employed. Unfortunately, you have only provided evidence of permission to work in Ireland for dates after the employment for which you are claiming a redundancy payment. As you have failed to provide proof of a valid work permit for the period of your employment you cannot be deemed to be in insurable employment and are therefore not entitled to be paid under the Redundancy Payments Act 1967, as amended. "

18. On 18 July 2023, the applicant lodged an appeal against that decision to the Workplace Relations Commission (WRC). That appeal was heard on 1 December 2023, by way of a remote hearing.

19. In a detailed written decision issued on 4 July 2024, the adjudicating officer held that having regard to the provisions of s.39(15) of the Redundancy Payments Act 1967, which provides that an appeal to the Director General against a decision may be taken, but that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts; he had no jurisdiction to adjudicate on the appeal and as a consequence, the applicant's appeal failed.

20. On 24 September 2024, with the assistance of the Free Legal Advice Centre (FLAC), the applicant submitted a request for a review of the decision of the first respondent made on 23 January 2023.

21. On 27 December 2024, the first respondent gave his decision on the review of the earlier decision. The original decision was upheld for the reasons set out therein.

22. On 12 May 2025, the applicant obtained leave from the High Court to institute the within proceedings. His notice of motion was issued on 14 May 2025. A statement of opposition was filed on behalf of the respondents on 19 September 2025.

23. On 10 October 2025, the applicant swore a further affidavit wherein he corrected an error that had been contained in his original application form seeking the redundancy payment. In that form it had been stated that he was a citizen of the EEA/ Switzerland/UK. The question as to whether he was a citizen of any of those entities had been answered " Yes." The applicant stated that that error had occurred unknown to him because the application form had been filled out by his previous employer. He pointed out that when requested to provide documentation showing his nationality, he had produced evidence of his Brazilian nationality.

Relevant Legislative Provisions in Irish law.

24. It is necessary to set out a brief synopsis of the relevant statutory provisions in Irish law which arise for consideration in this case. The first of these is the Redundancy Payments Act 1967, as amended. In s.2(1) thereof, the term ' employee ' is defined as meaning a person of 16 years and upwards who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer.

25. To qualify for a statutory redundancy payment from the social insurance fund under the Redundancy Payments Scheme, an employee must be in employment which is insurable under the Social Welfare Acts for all social welfare benefits and have a minimum of 104 weeks continuous employment with the employer. The employee must satisfy the qualifying criteria as set out in the 1967 Act. Section 4(1)(a) of the 1967 Act provides that the Act applies to " employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005 ".

26. Section 7(1)(b) of the 1967 Act provides that in order to have a general right to a redundancy payment, an employee must have been an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts. Therefore, in order to qualify for a redundancy payment the employee must satisfy the insurable employment condition which is provided for in separate social welfare legislation.

27. Section 2(1) of the Social Welfare Consolidation Act 2005 defines " insurable employment " as " employment such that a person, over the age of 16 years and under pensionable age, employed in that employment would be an employed contributor " . Section 12(1) of that Act provides that an employed contributor is a person over the age of 16 years and under pensionable age who is employed in any of the employments specified in Part I of Schedule 1, which defines ' employment ' as " employment in the State under a contract of service or apprenticeship, written or oral, whether express or implied...". Thus, the question of insurable employment depends on the employee's employment under a contract of service.

28. Also of relevance in this case is the social insurance fund. It was first established by the Social Welfare Act 1952 and was continued in being under s.122 of the Social Welfare Consolidation Act 1981 and latterly by the successor to that Act being the Social Welfare Consolidation Act 2005. The purpose of the fund is to provide funding for social insurance entitlements primarily through social insurance contributions.

29. The Protection of Employees (Employers Insolvency) Act 1984 provides a means whereby an employee whose position of employment has been terminated on grounds of redundancy and whose employer is insolvent, can have access to a fund to obtain redundancy payments from the State. The fund is that nominated under the 1984 Act in succession to the Redundancy Fund which had been established under s.26 of the Redundancy Payments Act 1967. It was redesignated as the Redundancy and Employers Insolvency Fund pursuant to ss. 2 and 6 of the 1984 Act. The term ' employee ' is defined under the 1984 Act as meaning a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work, or otherwise, is express or implied, oral or in writing and whether it is a contract of service or apprenticeship or otherwise, and ' employer ' and any reference to employment shall be construed accordingly.

30. Section 2 provides that the Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare (Consolidation) Act 1993, or would be so insurable but for the fact that (a) the employment concerned is an excepted employment by virtue of paras. 2, 4 or 5 of Part II of the First Schedule to the Social Welfare (Consolidation) Act 1993; or (b) the employees concerned have attained the age of 66 years.

31. In situations of employer insolvency, where an employee is entitled to a redundancy payment and an employer is unable to pay by reason of insolvency, such payment may be made from the fund on foot of an application under s.32 of the 1967 Act and s.6 of the 1984 Act respectively.

32. As already noted, in order to be eligible for a payment under the 1967 Act, as amended, the employee had to be in insurable employment which meant employment that was insurable for all the benefits under the 2005 Act. Section 3 of the 1984 Act contains the same requirement.

33. Also of relevance in this case are the provisions of the Employment Permits Act 2003, as amended. While that Act was repealed and replaced in 2024, the 2003 Act was the Act that was in force at the time material to these proceedings.

34. Section 2(1) of the 2003 Act, as amended, requires that a foreign national who wishes to work in the State shall have a work permit granted under its provisions. It provides that a foreign national shall not (a) enter the service of an employer in the State, or (b) be in employment in the State, except in accordance with an employment permit granted by the Minister under s.8 of the Employment Permits Act 2006 that is in force.

35. Section 2(2) of the 2003 Act prohibits an employer from employing a non-national who does not have a work permit. It provides that a person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under s.8 of the Employment Permits Act 2006 that is in force. Section 2(3) of the 2003 Act provides that a foreign national who works without a permit and a person who employs a foreign national without a permit, shall be guilty of an offence.

36. Finally, the provisions of the Immigration Act 2004 are relevant. Control of entry into, and the conditions for residence in, the State is primarily governed by this Act. For present purposes the provisions of s.5 of the 2004 Act govern entry into and residence in the State for non-EU and EEA nationals.

37. A person who wishes to obtain leave to be in the State must apply under s.4 of the 2004 Act for permission under s.4(1). The applicable criteria are set out in s.4 (3) of the Act. One of the reasons for which an immigration officer is entitled to refuse entry into the State is that the non-national " intends to take up employment in the State, but is not in possession of a valid employment permit (within the meaning of the Employment Permits Act 2003) ".

38. Section 5 of the 2004 Act provides that a non-national, other than a refugee or an asylum seeker, who is in the State without ministerial permission under s.4 is " for all purposes " ** unlawfully present in the State. Section 5(1)(2) provides: " No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given to him or her after such passing, by or on behalf of the Minister. A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State. "

Relevant EU Legislation.

39. The Directive at the heart of this case is EU Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer. This directive was a codification of the earlier directive 80/987/EEC of 20 October 1980, which had been amended several times in the intervening years.

40. Recital 3 to the Directive provides that it is necessary to provide for the protection of employees in the event of the insolvency of their employer and to ensure a minimum degree of protection, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the community. To that end, the Directive provides that Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned.

41. Article 1(1) provides that the Directive shall apply to employees' claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Art. 2(1).  Article 1(2) provides that Member States may, by way of exception, exclude claims by certain categories of employee from the scope of the Directive, by virtue of the existence of other forms of guarantee if it is established that these offer the persons concerned a degree of protection equivalent to that resulting from the Directive.

42. Article 2(1) of the Directive provides for the circumstances in which an employer shall be deemed to be insolvent. Of particular relevance in this case are the provisions of Art. 2(2), which provide that the Directive is without prejudice to national law as regards the definition of the terms ' employee ', ' employer ', ' pay ', ' right conferring immediate entitlement ' ** and ' right conferring prospective entitlement '. The sub article goes on to provide that Member States may not exclude from the scope of the Directive the following: part time employees within the meaning of Directive 97/81/EEC; employees with a fixed term contract within the meaning of Directive 1999/70/EC; or employees with a temporary employment relationship within the meaning of Art. 1(2) of Directive 91/383/EEC.

43. Article 3 of the Directive provides that Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Art. 4, payment of employees' outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.

Two Relevant Decisions.

44. There are two judgments that are highly relevant to the determination of the issues in this case. The first of these is the decision of the Supreme Court in Sobhy v Chief Appeals Officer [2022] 1 IR 807. In that case, the applicant was seeking payment of money in respect of maternity leave. The applicant had entered the State under a student visa which had expired. Her subsequent applications to remain in the State were unsuccessful. The applicant stayed on and worked as a chef. She did not have a work permit covering this period. It was accepted that during the entire period during which the applicant had worked in the State, including the period when she did not have permission to work, she had paid PAYE and other contributions such as PRSI and USC.

45. After the applicant's immigration status had been regularised on 11 April 2019, she applied for maternity benefit. Her application was refused by the deciding officer who took the view that as it was illegal for her to engage in employment in the State during the period when she did not have a valid work permit, her contributions during that period could not validly afford her an entitlement to social welfare payments under the 2005 Act. The net question which fell to be determined in that case was whether contributions that had been made by the applicant when she did not have a work permit or permission to remain in the State, could give rise to an entitlement to benefits under the 2005 Act.

46. Baker J. delivered the unanimous judgment of the Supreme Court. Having reviewed the relevant statutory provisions, the judge noted that the applicant had made social welfare contributions during the entire period that she had worked; and that were it not for the fact that she had worked without having had the benefit of a work permit during the relevant years; her contributions would have entitled her to maternity benefit. The judge stated that the net question for consideration was whether her employment was insurable under the social welfare legislative provisions or whether her employment, being as it was without a work permit, was capable of being treated as insurable or her contributions treated as qualifying contributions.

47. In the course of her judgment, Baker J. reviewed the law on illegality of contracts. She referred to the decision of Egan J. in FAS v Minister for Social Welfare (Unreported, Supreme Court 23 May 1995) where the general position applying at law was stated as follows:

" If a contract is expressly or impliedly prohibited by statute, the court will not enforce the contract. In addition, as a question of statutory interpretation, it would seem that if under the Labour Services Act 1987, a particular type of contract is prohibited then it cannot be regarded as coming within the definition of 'contract of service' under the (1981 Act). This would seem to be self-evident. If the Oireachtas has decided to prohibit expressly and absolutely a particular type of contract by statute, it would be anomalous if reliance were to be placed on that contract for the purpose of social welfare contributions and benefits....... In other words, the general position is that where a contract is found to be illegal, whether by reason of the fact that its object is the committing of an illegal act or that it is expressly or impliedly prohibited by statute, it will not be recognised at law. "

48. Baker J. noted that while those dicta were obiter, they reflected the general common law position that a right cannot flow from an illegal contract or a contract tainted by illegality, as expressed by Lord Ellenborough CJ. in Langton v Hughes [1813] 1 M&S 593 and in the often quoted dicta of Lord Tenterden CJ. in Weatherell v Jones [1832] 3 B&Ad 221. Baker J. noted that the old case law supported the general proposition, which had been long established in the authorities, that the court will not lend itself to the enforcement of an illegal contract. She further noted that in the case before the court, the legislation had created an offence on the part of both the employer and the employee, with the effect that the employment was itself illegal and in breach of the criminal law.

49. At para.59 of the judgment, Baker J. referred to the case of Hussein v The Labour Court [2012] 2 IR 704, where the unfairness and potential exploitative consequences of statutory illegality in the enforcement of an employment contract had been highlighted. In that case, the notice party was a foreign national, who had worked in the State without a work permit for several years. The action arose from his claim for arrears of wages under the relevant statutes, which claim had been brought before the Rights Commissioner.

50. The Rights Commissioner upheld the notice party's complaint; as did the Labour Court on appeal. In his defence, the employer had relied on the fact that the employee did not have a work permit. On a judicial review taken to the High Court by the employer, Hogan J. held that the contract was illegal as the notice party did not have a work permit. He held that the court could not enforce any entitlement to unpaid wages from the contract. While Hogan J. had noted the vulnerability of the employee and the risk that an undocumented migrant in his position could be exploited by an unscrupulous employer, against whom no legal recourse was available at law; nonetheless, he felt constrained by ss.2(1) and (2) of the Work Permits Act 2003 and the prohibition thereby created, to find in favour of the employer.

51. Baker J. stated that she agreed with Hogan J. that the employment contract in that case did not involve what he had described as an ** " incidental illegality " in its performance, but rather the contract of employment was substantively illegal in the absence of a work permit. Baker J. went on to note that the unfair consequences that had been identified by Hogan J. in the Hussein case had been remedied in part by subsequent legislative intervention, which provided for limited circumstances in which an employee, who did not have the benefit of a work permit, could sue his or her employer for work done or services rendered that had gone unpaid. She set out the various legislative interventions that had taken place in this regard at para.62 of her judgment.

52. Later in her judgment, Baker J. addressed the submission that had been made to the effect that the payment by the undocumented worker of social security contributions could establish something in the nature of a contract between the worker and the State which would entitle them to receive social welfare benefits. That argument was rejected by the court. Baker J. held that none of the indicia of a contract could be said to exist between a person paying social welfare contributions, which he or she was obliged to pay by statute and the obligation of the State to make payments at a rate set by the Oireachtas from time to time to contributors. She held that the essential element of a contract was missing, as it could not be said that either the employer or the employee had chosen to enter into a contract with the State and that the entire social welfare code and the structure of payments of contributions and benefits created thereby, fell outside any contractual nexus; but rather arose from the imposition of an obligation and the creation of a fund where payments are made at a level and subject to conditions and qualifications determined by legislation from time to time: see paras. 76 and 77.

53. The judge went on to hold that the element of mutual promises, whether supported by separate consideration or the mutuality of promises, was missing. It was held that no coherent argument existed to support a general proposition that the applicant was entitled by reason of a contract or so-called contractual ' nexus ' with the State to receive maternity benefits, notwithstanding that she had met the qualifying contributions: see paras 80 and 81.

54. Addressing the legislative amendments that had been made to cure the unfair position that had resulted from the Hussein decision, Baker J. noted that those amendments created extra-contractual entitlements, so that the person suing on foot of its provisions did not need to establish that he or she was lawfully employed in the State. Further, they did not in their terms make the otherwise illegal contract, legal. On that basis it was held that the decision in FAS v Minister for Social Welfare was correct and that a person without a work permit was excluded from the social welfare code, both as regards the obligation to pay PRSI or other social contributions, and any entitlement that may arise therefrom.

55. The learned judge further noted that the legislation expressly provided in s.2B (12) of the 2003 Act (as inserted by s.4 of the 2014 Act) that any award made in favour of an undocumented foreign national under the amending legislation was not to be treated as reckonable emoluments for the purposes of the 2005 Act. She stated that that was an important provision which suggested that the Oireachtas was alive to the possible claim to social welfare or other benefit by reason of the receipt of the redress payment, and that it did not intend that an employee who obtained the redress could thereby be deemed to have made qualifying contributions. She held that the fact that the Oireachtas thought it necessary to make these interventions supported a view that, in other respects, no rights could flow from a contract of employment without a necessary work permit or by a person unlawfully present in the State: see paras. 85 -87.

56. The conclusions of the court were set out in the following way at paras. 96?98 of the judgment:

" This analysis leads me to the view that the Oireachtas intended to designate a contract of employment entered into without a work permit by a person unlawfully in the State as illegal for all practical purposes, save as expressly provided by statute. The applicant's contract of employment cannot therefore be a qualifying "contract of service" for the purpose of the entitlement to maternity benefit. The Oireachtas intended that only contributions made by persons in employment whose contracts are made or to be performed in a legal manner could obtain benefit under the code.

The 2003 Act, by prohibiting both the employer and employee from entering into a contract of employment without a work permit, does reflect a public policy which is part of the overall regulation of immigration and working in the State. The legislation has created a complex structure of visas, permission for students to work in limited circumstances, work permits granted in certain conditions etc. The applicant could not meet any of the conditions to obtain a work visa in her circumstances, and the policy of the legislation would be frustrated if a person, having failed to obtain a permit under the very schemes by which this is possible, could still obtain the benefit of social welfare payments or entitlements derived from working in the State notwithstanding.

I cannot accept the argument of the applicant that the contract between the applicant and her employer was one that was "tainted" by illegality, if by that it is meant the contract was partly legal and partly illegal. This contract was illegal as a matter of statute law. Because of the legislative intervention which permits an action on foot of that contract in certain circumstances, some of the harshness of this conclusion is abated, but absent statutory intervention, the contract cannot be regarded as meeting the test that it be a "contract of service" within the meaning of the schedule to the 2005 Act . "

57. Baker J. went on to hold that while the 2003 Act did not expressly provide that the employment contract was either void or unenforceable; nevertheless, the conclusions reached in FAS v Minister for Social Welfare and in Hussein v The Labour Court, were such, that such an inference was inescapable and flowed as a matter of first principle from the policy that the courts refrain from enforcing illegal contracts.  She went on to hold that the construction of the phrase ' contract of service ' in the 2005 Act, must exclude from its ambit a contract of employment made by a person who was required, but did not have, either a visa or a work permit. She held that the court would not lend assistance to a claim for social insurance when the policy of the 2003 Act could be frustrated thereby. She held that any other view, would fail to respect the general terms of the 2003 Act and those of the 2004 Act.

58. The court noted that it was correct that the applicant's contract of employment was not void for all purposes, but the exceptions all arose from statutory intervention.

59. At para 123, Baker J. held that the statutory regime created by the 2003 Act and the 2004 Act contained, and sought to further, the public policy of the regulation of immigration and employment of undocumented persons in the State. She held that that statutory purpose was directed towards the common good and the furtherance of the protection of the borders of the State. She was satisfied that that purpose would be significantly frustrated by a reading of the 2005 Act that permitted the payment of maternity benefit on foot of PRSI contributions made by a person employed in the State, who did not have the benefit of a work permit. She stated that she was satisfied that public policy required that the contract of service to which the 2005 Act referred must be treated as an illegal contract and that public policy required that the courts not encourage persons employed in the State who required a permit, but who work without one, to nonetheless be entitled to the benefit of social welfare payments.

60. The final conclusion was that the approach of the court must be to protect the objects or policies of the 2003 Act and of the 2004 Act, and that doing so required that the court refuse to enforce the claim made by the applicant to maternity benefit.

The Decision of the CJEU in Tumer v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Case C?311/13).

61. The applicant in these proceedings was a Turkish national who had lived in the Netherlands since 1988. During the period between 18 August 1988 and 31 March 1995, the applicant held a fixed period residence permit which had issued subject to the condition that he live with his spouse. The applicant was divorced in 1996.

62. In October 2005 the applicant had applied for a residence permit of indefinite duration. That application had been refused. Since April 2007, the applicant had not held a residence permit entitling him to reside in Holland.

63. After 1997, the applicant had worked intermittently in the Netherlands. On 3 January 2005 he had been engaged by a company called Halfmoon Cosmetics BV, which had paid contributions under the social welfare code in Holland on his behalf in 2007. From August 2007, the company paid only part of the applicant's salary. The company was declared insolvent on 22 January 2008. On 26 January 2008, the applicant was dismissed. The applicant applied for insolvency benefit under the social welfare code in Holland on the basis of his right to payment by the company, which the company had not honoured in the period between August 2007 and his dismissal in January 2008; which was a period during which he did not hold a residence permit.

64. The relevant parts of the question referred by the tribunal in Holland to the CJEU was in the following terms:

" Should Directive 80/987 and, in particular, Articles 2 to 4 of that directive be interpreted... as precluding national legislation such as Article 3(3) and Article 61 of the [social welfare code], under which a third country national who is not legally resident in the Netherlands within the meaning of Article 8 (a) to (e) and (l) of the social welfare code is not to be regarded as an employee, even in a case such as that of [a third country national], who has applied for an insolvency benefit, who under civil law must be regarded as an employee and who meets the other conditions for the grant of that benefit? " **

65. The net question before the CJEU was whether the social welfare code could preclude a non-national from receiving a particular social welfare benefit on the basis that he did not hold a valid residence permit during the period that he was employed in the State, even though that third country national was recognised under the civil law of the Member State as having the status of an ' employee ' with an entitlement to pay which could be the subject of an action against his employer before the national courts.

66. The court noted that from the information provided by the referring court, the civil law in the Netherlands characterised every person who had a contract of employment with an employer as an ' employee ' who was entitled, whatever his nationality or the lawfulness of his residence in that Member State, to receive pay. However, Art. 3(3) of the relevant social welfare code concerning payment of insolvency benefit, excluded ' illegally staying third country nationals ' from the definition of ' employee ' and accordingly from any entitlement to the insolvency benefit.

67. The court held that Member States could not define at will the term ' employee ' in such a way as to undermine the social objective of the Directive. It should be noted that while the CJEU was looking at the matter under the earlier Directive, its terms were identical to the present Directive for all practical purposes.

68. The court held that it was contrary to the social objective of Directive 80/987 to deny the protection provided for under that directive in the event of an employer's insolvency to individuals to whom national legislation generally attributed the status of employees and who, by virtue of that legislation, had wage claims vis-?-vis their employer arising from contracts of employment or employment relationships as referred to in Art. 1(1) and the first paragraph of Art. 3 of the directive.

69. The court noted that according to the information provided by the referring court, ' illegally staying third country nationals ' who worked without the proper authorisations were, under national civil law, ' employees ' with an entitlement to payment for work done, that was to say, with a claim of the kind that Art. 1(1) and the first paragraph of Art. 3 of Directive 80/987 were intended to make secure. In these circumstances, the court answered the question posed to it by the referring court in the following way at para. 49:

" In the light of all the above considerations, the answer to the question referred is that Directive 80/987 must be interpreted as precluding national legislation on the protection of employees in the event of the insolvency of their employer, such as that at issue in the main proceedings, under which a third-country national who is not legally resident in the Member State concerned is not to be regarded as an employee with the right to an insolvency benefit ? on the basis, in particular, of claims relating to unpaid wages ? in the event of his employer's insolvency, even though that third-country national is recognised under the civil law of the Member State as having the status of an 'employee' with an entitlement to pay which could be the subject of an action against his employer before the national courts. "

Discussion and Conclusions.

70. The first issue which the court must determine is whether the court should exercise its discretion to refuse relief to the applicant on the basis that he has an alternative remedy provided for by the appeal mechanism that is created under the relevant legislation.

71. In that regard, it was submitted by Mr. Fitzpatrick SC on behalf of the respondents, that the applicant had an appeal to the WRC and thereafter to the Labour Court and had a further appeal on a point of law to the High Court. It was submitted that in these circumstances, if the applicant was dissatisfied with the impugned review decision, which had upheld the earlier decision; he ought to have proceeded by way of the statutory appeal mechanism, rather than by way of the institution of judicial review proceedings.

72. In response, Mr. Shortall SC on behalf of the applicant submitted that where the applicant had already pursued an appeal to the WRC, and where it had been held by the adjudicating officer that he did not have jurisdiction to deal with the central issue; it was futile for the applicant to be required to pursue another appeal to the WRC in this regard.

73. Insofar as it was suggested that the applicant would have the benefit of further appeals from the WRC to the Labour Court and on up to the High Court on a point of law; it was submitted that the High Court on the hearing of such an appeal would be limited only to a point of law arising from the decision of the adjudicating officer in the WRC. This would mean that the High Court would be limited to a consideration of the finding by the adjudicating officer that he did not have jurisdiction to deal with the matter.  In this regard, counsel referred to the decision in Petecel v Minister for Social Protection [2024] 2 IR 685, where the limitation on an appeal on a point of law had been recognised by O'Malley J. in her judgment at paras. 110?111.

74. It was submitted that having regard to the outcome of the previous appeal to the WRC and to the limitations on an appeal on a point of law to the High Court, that it was appropriate that the applicant should proceed by way of judicial review proceedings so as to obtain a decision on the substantive matter that was the subject matter of these proceedings.

75. It was submitted that while it had been held that the existence of an alternative remedy, usually in the form of a statutory appeal provided for under the relevant legislation, could be a ground on which the court could exercise its discretion not to grant relief by way of judicial review; the court could exercise its discretion to grant relief by way of judicial review if it was satisfied that it was appropriate to do so. It was submitted that the present case was one of those cases where it was appropriate to proceed by way of an application for judicial review.

76. In considering this issue, the court notes that in The State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381 it was held that a question can arise as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion. The court held that it was well established that the existence of such right or remedy ought not to prevent the court from acting. It was a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari had been sought, the adequacy of the alternative remedy and the conduct of the applicant: see generally the dicta of O'Higgins CJ at p.393.

77. In Stefan v Minister for Justice [2001] 4 IR 203, Denham J. (as she then was) stated as follows at p.216:

" It is clear that while the presence of an alternative remedy, an appeal process, is a factor, the court retains jurisdiction to exercise its discretion to achieve a just solution. " **

78. In McGoldrick v An Bord Plean?la [1997] 1 IR 497, Barron J. stated that the issue to be determined when there was an alternative remedy in existence, was which was the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness, provided that the applicant had not gone too far down one road to be estopped from changing his or her mind.

79. In EMI Records v Data Protection Commissioner [2014] ILRM 225 Clarke J. (as he then was) stated that the default position was that a party should pursue a statutory appeal rather than initiate judicial review proceedings. It had to be presumed that where the Oireachtas had established a form of statutory appeal, it was intended that ordinarily such an appeal was to be the means by which those dissatisfied with an initial decision might be entitled to have that decision questioned. However, he stated that there would be cases which were exceptional to the general rule, where the justice of the case would not be met by confining a person to the statutory appeal and excluding judicial review. He stated that the set of such circumstances was not necessarily closed.

80. Finally, in Petecel v Minister for Social Protection [2024] 2 IR 685, the Supreme Court had to consider the jurisdiction that was enjoyed by the High Court when considering an appeal on a point of law. It was held that questions as to the scope of the jurisdiction of the High Court in a statutory appeal had to be answered by reference to the terms of the statute creating that jurisdiction. It had to be borne in mind that an appeal on a point of law was the narrowest of the four categories of statutory appeal that had been identified by Clarke J. in Fitzgibbon v Law Society of Ireland [2015] 1 IR 516.

81. The court pointed out that in an appeal on a point of law, the High Court was being asked to determine whether or not the task of interpreting and applying the provisions of the relevant legislation had been carried out correctly, by reference to the legislation and the evidence grounding the decision under appeal, and without reference to issues such as jurisdiction, vires, or the constitutional validity of the legislation under consideration. If a litigant sought to argue such issues, the court would decline to rule on the matter on the basis that it did not properly arise from the decision under appeal, since it could not have been determined by the decision-making body.

82. In ruling on this issue, I am satisfied that when the applicant had appealed to the WRC previously, and it had accepted the submission made on behalf of the first respondent that it did not have jurisdiction to determine whether the applicant was in insurable employment, due to the provisions of s.39(15) of the Redundancy Payments Act 1967; it would have been futile for the applicant to have appealed to the Labour Court and thence to the High Court on a point of law, because that could only have been on the issue of whether the WRC was correct to hold that it did not have jurisdiction to consider the substantive matter.

83. An appeal to the High Court would not have resulted in a decision being obtained on the central point, being whether the first respondent should have disapplied the provisions of Irish law because they conflicted with the provisions of the Directive as interpreted by the CJEU in the Tumer case. Had the applicant pursued the same appeal route as on the previous occasion, I am satisfied that he would have met the same result in the WRC, with the prospect of only obtaining a decision on the jurisdiction point had he appealed further up the line.

84. I am satisfied that the applicant acted reasonably in pursuing a remedy by way of judicial review in respect of the impugned decision because that was the quickest way to get a decision from a competent body on the substantive issue, being whether the exclusion of the applicant from receipt of redundancy payments because he did not hold a residence permit or a work permit during the period when he was working for the company, was in conflict with the provisions of the Directive and whether such provisions of Irish law ought to be disapplied by the first respondent when considering his application.

85. In these circumstances and having regard to the nature of the arguments that the applicant wishes to raise in these proceedings, it is appropriate that he be permitted to proceed by way of judicial review, notwithstanding that there is an appeal mechanism provided for under the relevant legislation.

86. Turning to the main ground of substance in this application, the court has already set out in extenso the relevant terms of the Directive and the salient findings in the Sobhy and Tumer cases. I hold that the decision in the Sobhy case makes it clear that non-nationals who engage in paid work without holding a valid work permit are not employed under a valid contract of service and are not employees within the meaning of Irish law.

87. This was clearly established in the judgment of the Supreme Court. As noted in that judgment, such undocumented workers are given some protection by various statutory interventions: see paras. 62 and 63 of the judgment. However, their contract is void for most purposes and is illegal.

88. I hold that as such undocumented workers are not defined as employees under Irish law, they do not fall within the provisions of the Directive. Article 2(2) of the Directive provides that Member States may define which categories of workers come within the definition of employees for the purposes of the Directive. The freedom of Member States in this regard is curtailed in certain respects under that article, but those exceptions are not relevant to the present case.

89. The applicant relied heavily on both the opinion of the Advocate General and the judgment of the CJEU in the Tumer case, as authority for the proposition that access to a guarantee fund for workers whose employers were insolvent was mandated by the terms of the directive; and therefor, the conflicting provisions of Irish national law had to be disapplied. I do not find that submission to be well founded.  The Tumer judgment does not provide that Member States must make available to undocumented or illegal workers the same rights that are provided to properly documented workers under the national law of the Member State concerned, or under the Directive.

90. The decision in the Tumer case turned exclusively on whether the Member State concerned could treat undocumented workers differently from other employees in relation to receipt of insolvency payments, when the national law of that Member State recognised that for all other purposes such undocumented workers were regarded as employees under its national law.

91. The question referred by the Tribunal in Holland and the information provided by it, specifically stated that the applicant in that case was recognised as an employee under Dutch law. The salient parts of the question that was referred to the CJEU in that case have been set out earlier in this judgment.

92. In the judgment delivered by the CJEU in the Tumer case, it was clearly stated on several occasions that they were proceeding on the basis that the applicant was recognised under Dutch law as being an employee: see paras. 27, 28, 39, 44, 45, 46 and 49.

93. I am satisfied that on a correct reading of the judgment in the Tumer case, the CJEU held that it was in breach of the terms of the Directive for the national law of the Member State to treat the applicant as an undocumented worker and as therefore being disentitled to an insolvency payment that was payable to all other qualifying employees, when he was regarded as being an employee in all other respects under Dutch law.

94. This was made crystal clear in the conclusion of the CJEU at para. 49 of the judgment, which has been set out above. The CJEU held that discriminating between categories of employees, on the basis that one category was undocumented and therefore was ineligible to receive the payment, was contrary to the objectives of the Directive and was contrary to the principle of equal treatment, which was to provide access to redundancy payments from a guaranteed fund for employees who had been made redundant and whose employers were insolvent.

95. The court held that it was not permissible under the Directive to discriminate against one category of employee on the basis that they were undocumented at the time when they carried out the work. That finding was predicated on the fact that under Dutch national law, such undocumented workers were recognised as being employees for all other purposes.

96. That is not the position under Irish law. As was clearly set out in the Sobhy case, under Irish law undocumented workers do not have a lawful contract of service and are not deemed to be employees. Therefore, there is no question of discrimination between different categories of employee under Irish law.

97. That effectively disposes of the case because the only substantive challenge to the original decision was that the decision maker had been wrong not to disapply Irish law and to hold that the applicant was entitled to the redundancy payments provided for under the Acts.

98. In argument at the bar, Mr. Shortall SC accepted that were it not for the provisions of EU law as contained in the Directive, as interpreted in the Tumer case, the applicant could not have any stateable case, as it was accepted that his application was otherwise covered by the decision in the Sobhy case.

99. As I have held that under the Directive, the State was entitled to define who were employees for the purposes of Irish law and, as found in the Sobhy case, that excludes people who work without holding a valid work permit; I hold that the first respondent was correct to come to the conclusion that he did in his original decision of 23 January 2023 and in the impugned review decision of 27 December 2024.

100. I hold that the decision makers were correct to hold that the applicant had not established that he was in insurable employment for the purposes of the 2005 Act, during the time that he was employed by Advertising Pens Limited in the period 5 February 2012 to 1 October 2021. Therefore, they were correct to hold that he was not entitled to receive redundancy payments under the 1967 Act, as amended, or under the 1984 Act.

101. In concluding, I would make two observations: first, the idea that someone could enter the State illegally, stay in the country illegally thereafter; and work illegally therein for many years; and then claim an entitlement to receive redundancy payments from the central fund when they are made redundant; is unrealistic.

102. Secondly, if the applicant's contention was correct that such undocumented workers had to have access to redundancy payments and other social welfare entitlements that are available to legal workers in the State; the State would have no idea how many people were working illegally in the State; nor how many people may make claims against the central fund. That would be contrary to the common good and would subvert in a significant way the immigration policy of the State as provided for in the relevant legislation.

103. For the reasons set out herein, I refuse the reliefs sought by the applicant in his notice of motion dated 14 May 2025 and in his statement of grounds.

104. Finally, the court was invited by counsel for the applicant to consider referring a question to the CJEU. The court is satisfied that having regard to the wording of the Directive and the clear provisions of Irish law as to the status of undocumented workers, it was not necessary for the court to refer any question to the CJEU to enable it to give its judgment herein.

Proposed Final Order.

105. Having regard to the findings of the court in its judgment, it is proposed that the final order should be to refuse the reliefs sought by the applicant in his notice of motion dated 14 May 2025 and in his statement of grounds.

106. As this judgment has been delivered electronically, the parties shall have four weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

107. The matter will be listed for mention at 10.30 hours on 6 May 2026 for the purpose of making final orders.

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