The Irish Supreme Court has unanimously decided that the Minister for Justice must consider the right to private and family life of two non-EEA nationals who applied for a ‘change of status’ following new immigration rules.
The ruling concerned two separate cases involving Mauritians who had arrived in Ireland in 2006 on a ‘Stamp 2’ visa, which allows both study and part-time work. In 2011, the Minister for Justice and Equality introduced a new student policy that non-EEA nationals on student visas could only reside in Ireland for a maximum of seven years. A transitional period was granted to those who had entered the country prior to 2011 that required a brief extension to apply for a work permit.
In the first case, Daniye Luximon came to Ireland with her daughters and worked as a dental practice coordinator. After her Stamp 2 visa expired in 2012, she was refused a Stamp 4 permit which would have allowed her work and establish long term residence in Ireland. In the second case, Yaswin Balchand was joined by his wife in Ireland, who gave birth to their son in 2009. The couple, had their visas regularly renewed until 2013 at which point they were refused a Stamp 4. Both requests were ‘change of status’ applications under section 4(7) of the Immigration Act 2004.
The respondents argued that their right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR) should have been taken into consideration by the Minister for Justice in exercising his discretion and making decisions on applications under section 4(7). The Minister for Justice contended that such rights would only have to be taken into account in the context of the deportation process under section 3 of the Immigration Act 1999.
The Court stated that by the time the new rules came into being, the respondents had acquired many of the characteristics of long-term migrants, their situation being different from short-term visitors, those here in temporary employment, or asylum seekers. It also noted that the order for them to leave the country was not due to “an unlawful act on their part, but rather by an alteration in Government policy”.
The Court found that failure to consider the applicants’ ECHR rights was unlawful, although emphasised that its determination was confined to the particular facts of these cases. The Court held that while the letters of refusal which asked the applicants to leave the country were not deportation orders, they “had the effect of expulsion orders” and so required their Article 8 rights to be considered.
The Court further refuted the Minister’s argument that the family life of the applicants would be considered later at “deportation stage” as illogical and inconsistent, and said that it should form part of their considerations from the start in cases such as these.
Click here for an Irish Times article on the case.
Click here for a previous Bulletin article on the Court of Appeal decision.
Click here for the Irish Human Rights and Equality Commission’s submission, who appeared as amicus curiae.