The applicant was a Mauritian citizen who came to Ireland in July 2006 on an student permission. This permission was renewed from time to time until June 2012. In October 2012 she applied for a change of status to regularise her position in the State, which would effectively allow her continue to reside in Ireland without the requirement that she be a student. This application was based in part on the length of time the applicant had lived in Ireland and the private life rights she had acquired during that time. Her application was refused by the Minister in November 2012. The Minister’s decision did not evaluate the applicant’s claims in relation to private life, saying such rights would only be considered in the context of the deportation process. The applicant challenged the Minister’s decision by way of judicial review.
By order of the High Court (McDermott J.) of 14 February 2013, the applicants were granted leave to apply for an order of certiorari of the respondent’s decision of 5 November 2014. The applicants contended that the decision was unlawful by reason of the failure to have any regard to the personal and/or family and/or private rights of the applicants pursuant to Art.40.3 and/or 41 of the Constitution and/or art.8 of the European Convention on Human Rights. The respondent argued that it was not obliged to consider art.8 rights and/or personal and/or private and/or family rights either under the European Convention on Human Rights and/or the Constitution of Ireland at this stage in the process. It was submitted that these were matters to be taken into consideration at the stage of expulsion from the State.
The High Court (Barr J.) in a written judgment of the 20 March 2015 ( IEHC 227) granted the applicants the reliefs sought. The High Court (Barr J.) certified that the decision involved the following points of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal be taken:
- Is the appellant obliged to consider rights alleged to arise under the Constitution/European Convention on Human Rights Act 2003 in applications made under s.4(7) of the Immigration Act 2004, by or on behalf of persons whose permission to be in the State has expired where such rights must be considered by the appellant where the appellant is considering whether or not to make a deportation order in respect of the person concerned in the deportation process under s.3 of the Immigration Act 1999?
- Is there an obligation imposed in law on the appellant to publish any criteria applicable under s.4(7) to a person in the first applicant’s position i.e. a timed-out non-EEA student without any current resident permission at the time of application who seeks permission to change their immigration status?
The Court of Appeal dismissed the appeal, holding that a decision on an application for variation of immigration status 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 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 Court of Appeal held that it was only if interference with an applicant’s right to respect for private or family life had consequences of such gravity as potentially to engage the operation of art.8 of the Convention that the proposed action must be justified in accordance with art.8(2). This was a matter for determination by the Minister subject only to judicial review by the courts.