The applicant was a Malaysian citizen who arrived initially in Ireland in 2007 with his wife. They had secured a visitors’ permission to remain for 90 days, however they outstayed this period by approximately 2 years when they returned to Malaysia in 2009. In July 2009 the applicant secured a 1 year valid student visa and his wife and child accompanied him without permission save that they were visa-exempt for a period of 90 days. The student visa expired on 22 July 2010.
On 7 June, 2012 the solicitor on behalf of the applicant engaged with the respondent to regularise the position of the applicant which engagement culminated in a 3-option letter of 14 February 2013. Subsequently, by letter of 5 March 2013 representations were made on behalf of the then 3 applicants. A letter of 10 October 2013 from the respondent required further documents and also requested that the applicants furnish any other information necessary for the application. By response of 15 October 2013 it was indicated that no further information was to be forthcoming. The Minister subsequently made a deportation order on 27 March 2014, and the applicant instituted proceedings challenging same on the basis that the consideration of the private life rights of the applicant flew in the face of common sense in that it was found that the decision to deport did not constitute an interference of such gravity as to engage art 8 of the ECHR. It was complained that no reason or rationale is provided. It was also complained that the Minister erred in his interpretation of “consequences of such gravity” and erred generally in the application of the test enunciated in R. (Razgar) v Secretary of State for the Home Department  2 A.C. 368 insofar as the Minister failed to assess whether or not the interference fell into one of the exceptions set out in art.8(2) of the ECHR. The proceedings initially related to the private life rights of all three of the family members however following the decision in Dos Santos v Minister for Justice  IECA 210;  3 I.R. 411;  2 I.L.R.M. 483 and CI v Minister for Justice  IECA 192;  3 I.R. 385;  2 I.L.R.M. 389, the application on behalf of the wife and the child was abandoned and the matter proceeded on the basis of an application on behalf of the husband only (who held a student permission for a one-year period between 2009 and 2010).
The applicant asserted that he should be assessed as a settled migrant from July 2009 to July 2010 when he had a valid student visa, relying on the decisions of the Court of Appeal in CI as well as Luximon v Minister for Justice  IECA 382;  2 I.R. 725;  2 I.L.R.M. 35 and Balchand v Minister for Justice  IECA 383;  2 I.R. 749;  2 I.L.R.M. 55. In resisting the argument that the applicant might be considered a settled migrant for any portion of his time in Ireland including as a student between July 2009 and July 2010, the Minister referred to the fact that student permission was particularly restricted and did not have the same liberties as permission to work in the State, for example, it is not possible to bring family members into the State on foot of a student permission where it is possible at least to apply in respect of an individual who is within the State on work permission. The Minister also referred to various European Court of Human Rights decisions such as Jeunesse v Netherlands (2015) 60 E.H.R.R. 17, Uner v Netherlands (2007) 45 E.H.R.R. 14 and Balogun v United Kingdom (2013) 56 E.H.R.R. 3 to the effect that it should be assumed that when the European Court of Human Rights refers to “settled migrants” they are doing so in relation to parties who for the majority of the period in a given country are there with permission as opposed to being there illegally or without permission.
Having reviewed the Strasbourg jurisprudence, O’Regan J. concluded that she was not satisfied that the conditions which might have attached to a student visa would preclude such a person from being considered to be a settled migrant for the period for which they have permission. Accordingly, O’Regan J. concluded that the applicant for the period from July 2009 to July 2010 was a settled migrant as opposed to being a party during that particular period of time who might be considered to be within the State in a precarious position. However, O’Regan J. went on to reject the applicant’s challenge to the decision to make a deportation order in respect of him, notwithstanding the absence of a proportionality assessment pursuant to art.8(2) on the basis that the breach of art.8(1) was not sufficient to engage art.8(2). This conclusion was reached by reference to the limitations in the nature of the representations put before the Minister on behalf of the applicant in resect pf the extent of his private life in the State. Accordingly, the challenge to the deportation order was refused. O’Regan J. subsequently refused a certificate of leave to appeal (WS v Minister for Justice and Equality IEHC 282).