The Irish Supreme Court has upheld the refusal of the Minister for Justice and Equality to extend the 2 year working holiday visa of a Canadian woman, despite interference with her right to private and family life under Article 8 of the European Convention on Human Rights (ECHR)
Case Background
The case involved a Canadian woman who had travelled to Ireland in 2018, in order to support her husband who was finishing his 4-year degree at University College Cork.
She had originally applied for a visa under the Working Holiday Authorisation Scheme – a special visa system offered to people between the ages of 18 and 35 to work and study in Ireland for a maximum time of two-years. This scheme was also specifically designed to be non-renewable.
Once her 2-year visa was up in 2020, she applied to the Minister for Justice for an extension to her visa, so that she could remain in Ireland. The application was refused by the Minister “the interest of public policy and the common good in maintaining the integrity of the immigration system.”
The applicant then brought High Court judicial review proceedings, which were opposed by the Minister. In court, the argument was made that the Minister’s decision violated her right to respect for private and family life under Article 8 of the ECHR.
Article 8(1) of the ECHR states that “Everyone has the right to respect for his private and family life, his home and his correspondence”, while Article 8(2) outlines that a public authority may interfere with this right in accordance with the law,
if this interference is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In the High Court, Mr Justice Max Barrett quashed the Minister’s decision to deny the applicant’s extension to her visa, arguing that the Minister’s reasons were “so broad as to be meaningless.” On the basis of this case involving a matter of public importance, the Minister got a direct appeal to the Supreme Court.
Supreme Court Decision
First, the Supreme Court acknowledged that the Minister erred in his decision when stating that the applicant’s right to family life under Article 8(1) was not affected by this decision. Mr Justice Hogan held that the applicant's right to family life was in fact engaged by this case, as it would in effect separate her from her husband for the following two years.
However, he held that ultimately the Minister’s decision to refuse her request for a visa extension was justified; the Court found that this interference with her family right was considered necessary, in order to maintain integrity and coherence in the immigration system.
Considerations/Importance
The ruling clarifies that exclusive dependence should not be placed on the ECHR when an ECHR right is also a constitutional matter. The Constitution “remains the fundamental law and ultimate source of human rights protection”, according to Mr Justice Hogan. Justice Hogan further stated that the ECHR “does not seek to operate as a surrogate constitution as such but instead rather seeks to establish minimum guarantees for the functioning of free and democratic societies within the contracting states.”
Click here for the full principal judgment of Mr Justice Hogan in Jaimee Middelkamp v Minister for Justice and Equality and Irish Human Rights and Equality Commission [2023] IESC 2
Click here for the assenting judgment of Ms Justice Dunne.
Click here for the assenting judgment of Mr Justice Charleton.