Two important decisions of the Court of Appeal were delivered on 15th December 2016 in the cases of Luximon & Ors -v- The Minister for Justice & Equality and Balchand & Ors -v- The Minister for Justice and Equality. Both cases addressed the question of whether, in determining an application for permission to remain by a non-EEA national, made pursuant to section 4(7) of the Immigration Act 2004, the Minister is obliged to consider the applicant’s rights to the respect for private & family life as guaranteed under Article 40.3 of the Irish Constitution and Article 8 of the ECHR. The Court of Appeal held that the High Court judgment from March 2015 of Barr J in Luximon was correct in finding that there was such an obligation on the Minister and therefore that the Minister for Justice must consider Article 8 under Irish constitutional law before determining any change of status applications.
By way of background both cases were in relation to families from Mauritius who had applied to the Minister for permission to remain in Ireland, making ‘change of status’ type applications. The applicants sought to change their status to Stamp 4 status and establish long term residence in Ireland. The appeal cases were heard together in June as they raised similar issues of fact and law. It is likely that the cases are ‘test cases’ for the requirements, if any, on the Minister in considering applications made pursuant to section 4(7) of the Immigration Act 2004.
Both judgments would appear to largely affect those who are resident in Ireland on stamp 2 student visas or those who have overstayed their student permission, in particular those who wish to continue to live and work in Ireland after their student permission expires. The effect of the judgement is that the Department of Justice are now obliged to consider all applications in line with the findings of the Court of Appeal and in particular must consider whether refusing such applications would interfere with the applicants’ rights to private and family life.
The Court held that the Minister is not obliged to have a published policy in relation to applications under Section 4(7) it is thus unfortunate that these appeal decisions have not fully clarified the issue of whether applications from persons whose immigration permission has expired are eligible to make applications under Section 4(7).
The Irish Human Rights and Equality Commission appeared as amicus curiae in both cases and a copy of their written submissions can be accessed here.
For Judgements click here and here.
For summary click here.