Luximon v. Minister for Justice & Equality (Court of Appeal – 14/12/2016)

Balchand v. Minister for Justice & Equality (Court of Appeal – 15/12/2016)

The Court of Appeal (Finlay Geoghegan J, Peart J & Hogan J) delivered important judgments on 15th December 2016 in the cases of Luximon & Ors -v- The Minister for Justice & Equality [2016] IECA 382 and Balchand & Ors -v- The Minister for Justice and Equality [2016] IECA 383.

These two cases concerning 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 of Barr J in Luximon (20 March 2015) IEHC [2015] 227was correct in finding that there was such an obligation on the Minister.

These judgments would appear to mainly affect people who are resident in Ireland on student permission or those who have overstayed their student permission, specifically those who wish to continue to live and work in Ireland after their student permission expires.

The INIS Policy document on Non-EEA Family Reunification, published in December 2013 provides a comprehensive statement on Irish national immigration policy in the area of family reunification. The policy lays out a number of overarching principles to the Minister’s assessment of applications for Non-EEA family members to live and reside with their Irish or legally resident family members in Ireland, as well as setting a number of specific thresholds relating to finance, income and dependency.
We submit that this policy should be applied in a fair and flexible fashion, taking account of the salient facts and circumstances of the particular applicant and their family members. The Executive Summary to the policy itself states “Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case”. “It is intended that family reunification with an Irish citizen or certain categories of non-EEA persons lawfully resident in the State will be facilitated as far as possible where people meet the criteria set out in this policy although of course each case must be considered on its merits”.

Applications for EU FAM Residence cards for permitted family members of EU Citizens, be it partners, brothers, sisters or any other family members are submitted to the EU Treaty Rights Division of the INIS under the provisions of Article 10 of Directive 2004/38/EC and Regulation 7 the European Communities (Free Movement of Persons) Regulations 2015.

Our office is of the opinion that there is no distinction in Article 10 or Regulation 7 between the time frame in the issuance of a decision on the application for permitted or qualifying family members. We quote from Article 10:

“The right of residence of family members of a Union citizen who are not nationals of a member state shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately”.

The judgement in the case of Mahmood and Atif v Minister for Justice and Equality was delivered on 14th October 2016.
Mr Mahmood is a British national, his wife Ms Atif is a citizen of Pakistan. Mr Mahmood and Ms Atif are legally married spouses. In and around June 2015 Mr Mahmood and Ms Atif submitted an application for a visa for Ms Atif to accompany Mr Mahmood to Ireland pursuant to Directive 2004/38/EC and then, the European Communities (Free Movement of Persons) Regulations 2006. Ms Atif submitted her application and supporting documents through the VFS centre as required on 9th July 2015.