Supreme Court: Minister erred in failing to consider Article 8 rights of applicants

Supreme Court: Minister erred in failing to consider Article 8 rights of applicants

Mr Justice John MacMenamin

The Supreme Court has ruled that the Minister for Justice, Equality and Law Reform erred in law in failing to consider whether Article 8 rights were engaged when refusing applications of two Mauritian citizens who had lawfully entered the State through a government scheme in 2006.

Emphasising that the legal status of the applicants in both appeals was distinguishable from that of an asylum seeker or a temporary resident, Mr Justice John MacMenamin said that they were best characterised as lawful, long-duration residents whose Article 8 rights were engaged and should have been assessed.

Background

The respondents in both appeals, Ms Daniye Luximon and Mr Yaswin Balchand, are both citizens of Mauritius.

Availing of an educational scheme set up by the State, they arrived in Ireland in 2006. The scheme permitted students to engage in part-time work, as well as undertake post-secondary level educational courses.

In July 2011, the government promulgated the “New Immigration Scheme for Full-time Non-EEA Students, registered in Ireland before 1st January 2011” which set explicit time limits on how long such students might remain in the State. This had significant effects on the respondents’ authorisation to remain here.

Both respondents were described as being part of financially self-supporting family units, both with children being educated within the State.

Explaining their status within the State, Mr Justice MacMenamin emphasised that their lawful entry and continuous lawful presence in the State up to 2011 meant that their situation was distinguishable from that of, inter alia, asylum seekers; and that their legal status was not altered through an unlawful act on their part, but by an alteration in government policy.

Mr Justice MacMenamin said that their legal status was best characterised “as having been that of lawful, long-duration residents, whose continued presence in the State remained conditional upon a periodic renewable permission under s.4(7) of the [Immigration Act 2004] by the Minister or immigration officer”.

The Minister’s position was that, by virtue of these administrative changes, both Ms Luximon and Mr Balchand came within a category of what are now described as “timed out students”, and, absent obtaining a change in their residence and employment status, they were no longer to be permitted to remain in the State.

Ms Luximon’s application for a variation of her permission was refused in 2012, and she was granted temporary student permissions to remain to finalise her affairs. Ultimately her extensions expired in 2013, however she remained in the State without Ministerial permission. Similarly, Mr Balchand and his family were directed to leave the State by December 2013.

Procedural History

In the High Court in the Luximon case, it was found that, in arriving at a decision under s.4(7) of the Immigration Act 2004, the Minister for Justice, Equality and Law Reform had erred in failing to consider the Luximon family’s Article 8 ECHR privacy and family rights in deciding whether to vary or renew their permission to be in the State. The Court of Appeal upheld the High Court judgment, although reversing one ancillary question which was not before the Supreme Court.

In the Balchand case, the High Court declined to grant judicial review of the Minister’s decision holding that, in making such a decision, the Minister did not have an ECHR duty. The Balchand family successfully appealed, and the Court of Appeal again held that the Minister, in making his decisions under s.4(7) of the Immigration Act 2004, erred by failing to give consideration to the respondents’ Article 8 ECHR privacy and family rights in refusing to grant a renewal or variation of their permissions to remain in the State.

Supreme Court

In the Supreme Court, the Minister appealed the decisions – and submitted that it was unnecessary to engage in consideration of Article 8 rights at that stage, and that an Article 8 assessment need only take place at the final, “deportation”, stage of the procedure.

Mr Justice MacMenamin said that “on a simple textual analysis”, the manner in which the Minister utilised s4(7) of the Immigration Act 2004 was unlawful, and that the impugned decisions should be quashed. Mr Justice MacMenamin added that the Minister’s interpretation of the 2004 Act was “contrary to public policy and might well necessitate that applicants under the section, be constrained to act in an unlawful manner, or, by virtue of applying, be forced to conduct themselves in a manner which would violate their Article 8 rights as members of family units”.

Furthermore, consideration of whether Article 8 rights were engaged should have been assessed.

Emphasising that this judgment should not be extended beyond its intent, and its application to the individual facts of each case, Justice MacMenamin said that the Minister was entitled to set limits on persons remaining in the State. Justice MacMenamin said that this judgment only affected the respondents’ entitlement to consideration of Article 8 rights in the Minister’s decision-making process.

For the foregoing reasons, the Supreme Court dismissed the Minister’s appeal.

• by Seosamh Gráinséir for Irish Legal News

, http://www.irishlegal.com/12427/supreme-court-minister-erred-in-failing-to-consider-article-8-rights-of-applicants/

http://asylumireland.ml/supreme-court-minister-erred-in-failing-to-consider-article-8-rights-of-applicants/