In December 2016 the Irish Human Rights and Equality Commission made an Amicus Curiae submission in relation to the Luximon and Belchand case, a case with potentially significant ramifications for non-EEA persons who remained in the State after originally arriving as Stamp 2 visa-holding students that wish to regularise their status.
The Luximon and Belchand cases concerns applicants who originally came to the State to study on Stamp 2 visas which then expired. They then worked in the State undocumented for a number of years. Both sets of applicants wished tor regularise their status in the State by making applications for Change of Status under section 4(7) of the 2004 Act. These applications were rejected by the Minister, and following this both sets of applicants pursued legal proceedings.
Irish Human Right and Equality Commission: Submission
Ms Emily Logan, the Chief Commissioner of the IHREC stated that the IHREC applied to be Amicus Curiae in the case of Luximon and Belchand as the case raised matters of significant public importance particularly with regard to the private and family rights of those who have been permitted to “live, study and work” in the State (The Irish Human Rights and Equality Commission, 2017).
In their submission the IHREC contends that the central issue in both Belchand and Luximon remains in essence the same. That issue of particular public importance is whether under section 4(7) of the Immigration Act of 2004 the Minister is under an obligation to consider Applicant’s constitutional and Convention rights to respect for private and family life where the Applicant is a person who has lawfully resided in the State on a student visa.
The IHREC in their submission state that the Applicants are entitled to invoke and rely on the private and family rights of both the Irish Constitution and the European Convention of Human Rights in the context of a Section 4(7) application for Change of Status under the 2004 Act. The IHREC points out that the Minister does not assert that the Applicants don’t enjoy these rights- the Minister instead argues that these rights only arise for consideration when the Minister proposes to deport the Applicants. The IHREC submit that it is illogical that these rights would arise for consideration at the deportation stage, but not during the consideration of a Section 4(7) Change of Status application, where arguably the potential consequences of a rejected application have serious ramifications for Applicants.
The IHREC then goes on to state that decisions of the Minister under Section 4(7) of the Change of Status application do in fact engage the rights of the Applicants under both the Convention and the Irish Constitution. The IHREC state that the Minister’s position of considering these rights only at the deportation present a “fundamental tension” in their position, and one which is contradictory in nature. The IHREC point out it is “settled law” that the Minister in exercising statutory discretion must act in accordance with the Constitution. They also submitted that under the section 3(1) of the European Convention on Human Rights Act 2003, subject to any statutory provision or rule of law, the Minister must perform their functions in a way that is compatible with the State’s obligations under the Convention. Therefore the Minister must act in accordance with Article 8 of the ECHR.
As was previously stated in previously on The Immigration Blog, the Court of Appeal in their judgment confirmed the submissions made by the IHREC, holding that the Minister’s refusal to consider the right to private and family life before making decisions that would require the applicants, who had arrived and resided lawfully in Ireland for a number of years, to leave the State was not consistent with her obligations under Section 4.7 of the 2004 Act. The Court also held that it was for the Minister to decide whether or not a refusal to renew permission to remain would have such serious consequences as to engage Article 8.
Due to the public importance of this case the Supreme Court has allowed an appeal, and a large number of cases currently on the High Court’s immigration list await the outcome of these test cases.
The Irish Human Rights and Equality Commission. (2017). Human Rights and Equality Commission Granted Liberty to Appear before Supreme Court in Right to Private and Family Life Cases. [online] Available at: https://www.ihrec.ie/human-rights-equality-commission-granted-liberty-appear-supreme-court-right-private-family-life-cases/ [Accessed 25 Oct. 2017].