The applicants were Mauritian citizens who came to Ireland lawfully on student permissions which were renewed periodically from time to time for several years. In 2011 the government adopted a new policy which placed a maximum time limit on how long students could remain in the State. The applicants subsequently applied to the Minister for a change of status to regularise their position in the State, which would effectively allow them continue to reside in Ireland without the requirement that they were students. These applications were based in part on the length of time the applicants had lived in Ireland and the private life rights they and their children had acquired during that time. These applications were refused by the Minister in November 2012. The Minister’s decision did not evaluate the applicants’ claims in relation to private life, saying such rights would only be considered in the context of the deportation process. The applicants challenged the Minister’s decision by way of judicial review. In the High Court in Luximon ( IEHC 227) found in favour of the applicants and held that the Minister was obliged to consider constitutional and/or ECHR rights when deciding a change of status application under s.4 of the Immigration Act 2004. In the High Court in Balchand ( IEHC 132) Humphreys J found against the applicants, holding that they had no constitutional or ECHR rights as a matter of fact which arose for consideration because their immigration status was only ever “precarious”.
The Court of Appeal heard the appeals in both cases together, and decided in favour of the applicants ( IECA 383). The Court of Appeal held that a proposed decision not to renew an immigration permission could have the consequence that a non-national was then unlawfully present in the State and had the potential to be an interference with that individual’s right to respect for private and family life such that it was capable of engaging art.8 of the European Convention on Human Rights. For this reason, in considering such an application, the Court of Appeal held that the Minister was obliged to consider any rights of the applicant alleged to be protected by the Constitution or art.8 of the Convention prior to making a decision to refuse to renew the permission.
The Minister appealed to the Supreme Court, which agreed to hear an appeal in relation to the question of whether, under s.4(7) of the Immigration Act 2004, the Minister was under a duty to consider constitutional family rights or art.8 ECHR rights, either generally, or in the circumstances of these case, in deciding such applications ( IESCDET 55)
MacMenamin J. delivered the judgment of the Supreme Court, holding that requiring a person who applied to have their residence permission renewed or varied pursuant to s.4(7) of the 2004 Act to remove themselves from the State in order to make the application was not permitted by that section. As a matter of statutory construction, s.4(7) dealt with an application to be made from within the State.
MacMenamin J said that s.4(7) of the 2004 Act was not in pari materia with s.3 of the Immigration Act 1999 which applied to deportation orders. The 2004 Act could best be seen as regulating lawful entrants coming into the State; the 1999 Act, by contrast, was concerned generally with the sovereign power of the State to deal with unlawful entrants to the State. Absent an appropriate assessment when the rights to respect for family and private life arose, it was no answer to say that these rights might be considered later at the s.3 of the 1999 Act deportation stage, in light of the position in which an applicant must then place themselves. If a person simply complied and left the State such rights would only be considered when they were already outside the State, by which time those rights may already have been violated. If they did not comply and remained in the State, they would have to place themselves in the situation of “remaining on” illegally in the State, which would itself trigger the possibility of deportation under s.3(2)(g) of the 1999 Act.
It was held that a decision pursuant to s.4(7) of the 2004 Act was the exercise of a “function” within the meaning of s.3 of the European Convention on Human Rights Act 2003. In making a decision under s.4(7), the appellant was under a duty to act in a manner compatible with the provisions of the European Convention on Human Rights (ECHR). A consideration under s.4(7) should be carried out having regard to art.8 ECHR rights where necessary at the time of that assessment, and at a time when the applicant remained within the State. Pursuant to art.8 ECHR, there may be a positive obligation to establish an effective and accessible procedure.
MacMenamin J noted that jurisprudence interpreting art.8 ECHR had moved beyond the proposition that human rights only arose in removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of family and private life under art.8, thereby enabling an independent assessment of an application to remain without the person concerned running the risk of breaking the law.
The Supreme Court held that in circumstances where an applicant had entered the State lawfully and resided lawfully in the State on a student permission with limited permission to work for some time, they acquired many of the characteristics of a long-term migrant and their status could not be described as “precarious” for the purpose of an assessment of their rights under art.8 ECHR.
Decision: Appeal dismissed.