The Supreme Court has recently clarified that the Minister for Justice (the Minister) has the power to regulate who enters the state through a Special Scheme and clarifies the meaning of good character and the duty to give reasons for decisions.
The case concerned two individuals who had applied for permission to reside in the state through a particular administrative scheme. The scheme was known as the “Special Scheme” and it applied to non-EEA nationals who had previously held a student permission at some stage during the period of the 1st of January 2005 and the 31st of December 2010, but whose permission to be in the State had expired.
Both individuals had their applications refused by the Minister on the grounds of a finding that the individuals were not of good character and conduct. As a condition to the success of the Special Scheme was that the applicants had to be of good character and good conduct. The Minister had found the individuals to not be of good character and conduct due to the fact that after the expiry of their student permissions both applicants held residence permits on foot of a marriage to a non-Irish citizen of the EU, which in both cases had been revoked by the Minister, for one of the individuals due to the finding by the Minister that she had entered into a marriage of convenience, and for the other individuals the Minister found the individual had submitted misleading documents in relation to the spouse’s presence in the country.
The individuals brought judicial review proceedings to the High Court, where they argued that the Minister did not properly address the issue of “good character”. Although unsuccessful in the High Court, the Court of Appeal held that the Minister could not have engaged sufficiently with all the submissions made by the individuals at the review stage of the Special Scheme. The Minister was directed to reconsider the application.
Subsequently both of the individuals were granted permission to remain in the State under a different scheme that aimed at the regularisation of long term undocumented migrants. However, the Minister sought to appeal the decision to the Supreme Court on the basis of the significance of the decision of the Court of Appeal in relation to the “duty to engage” with all of the material submitted by the applicant.
The Supreme Court acknowledged the rights under the Constitution and the European Convention on Human Rights and ruled that the Minister was entitled to apply the terms of the scheme and refuse applicants who did not come within it without breaching any rights.
The Court additionally considered the word “good character and conduct” and that they do not convey any particular legal meaning, but must be assessed the context that they are used. It was a requirement of the scheme that applicants should have been of good conduct both prior to and after arrival in the State and that criminal convictions were an absolute bar. But the court acknowledged that conduct falling short of criminal conviction would not necessarily be a bar and that applicants to the scheme would likely have been in breach of some immigration law for a period of time as they are likely to have remained after their expiry of their permission to be in the state. The Courts therefore found that a single instance of bad conduct without regard to its gravity would be an insufficient basis for an adverse decision.
The particular bad conduct that the individuals engaged in did not result in criminal convictions, but the court acknowledged it as having a high level of gravity, as it was in fact a criminal offence under the regulations to assert immigrations entitlements on the basis of fraudulent means such as a marriage of convenience and false misleading documents. Furthermore the court said it could be said that the particular context of the use of fraudulent means is an attack on the integrity on not only this State’s immigration system but also the EU immigration system.
The court also made reference to how both individuals were given ample opportunity to address the accusations of marriage of convenience and the misleading documents at a much earlier stage but chose not to reply to the minister’s letters. And therefore it was enough for them to be considered not of good conduct.
The court also acknowledged the accusation that the Minister did not engage adequately with the material and claimed that a statement by a decision maker that they have considered all the material put before them is sufficient without further affidavit evidence, unless there is some evidence based reason to think they did not. The court therefore held that it is not necessary to support a statement that all material has been considered with further evidence to prove the veracity of the statement.
The Supreme Court decided that while there is a duty for the decision makers to give good reason for their decisions, that the particular circumstances of these cases were so clear that there can be doubt about the reasoning of the decision makers and no doubt about the justification for their decisions.
Click here to read the full judgement.