RIGHT TO WORK FOR ASYLUM SEEKERS: RECENT DEVELOPMENTS

The indications by the Supreme Court last year that they would hold the absolute ban on asylum-seekers working as unconstitutional was heralded as a hugely significant and positive change for those seeking asylum in Ireland, and was previously written about in our Blog. Recent developments however indicate that the State proposes to limit this right so that only a small minority of asylum-seekers can actually benefit.
The Supreme Court case of N.H.V -v- Minister for Justice & Equality and Others [2017] IESC 35 was a significant case for a number of reasons. Firstly, the Court held that there was indeed a constitutional right to work under Article 40.3 of the Constitution, with O’Donnell J stating that employment goes to the “essence of human personality. Secondly, it was held that this constitutional right to work is applicable to asylum-seekers, although the Court did limit this slightly by accepting the legitimacy of a potential “pull” factor, and acknowledging that the Oireachtas may limit this right with reference to the Irish economy and other concerns. This affirms that while a right to work has been recognised, it is not on par with the entitlements of Irish citizens.
The Court stated that “in principle” they were willing to hold that the:
“[…]absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment.”
The Court then went on to state that due to the complex nature of this legal issue that they would remit the issue to the Oireachtas for a period of six months, and that following those six months the Court would invite to make submissions on how best the right to work could be realised.
Minister for Justice, Charlie Flanagan recently announced that Ireland would now opt in to the Reception-Conditions Directive, which provides asylum-seekers in other member-states that have opted in the right to work in certain circumstances. However, opting into the Directive would not be completed by the 9th February, the date on which the Supreme Court will rule the absolute ban on asylum-seekers working as unconstitutional.
As a result, the Government has proposed interim measures prior to the Directive coming into force in Ireland, where asylum-seekers can obtain employment permits to work in the State. These proposed interim measures have been strongly criticised by NGOs, legal professionals and academics. There measures propose that:
• If an asylum-seeker wishes to apply for a job, that job cannot be one that could be taken by an EU citizen or any other person with permission to work in the State.
• Employment that asylum-seekers take up must have a gross annual income of over €30,000.
• Areas of employment that are permitted are extremely restricted, with asylum-seekers not able to engage in healthcare, hospitality, social care, retail and many more.
These restrictions render the right to work of asylum-seekers extremely narrow, and will benefit only a very small number of asylum seekers. The restrictions have been criticised as having a gendered bias against women, with many of the restricted sectors such as social care made up largely of women.
The question remains as to what will become of these proposals once the Directive comes into force. The Dáil recently passed a motion allowing for the Government to opt into the Directive, but no examination or debate was made of the impact of this bill on asylum-seekers’ right to work.
It is worth considering what international best practice is with regard to asylum-seekers right to work. Our nearest neighbour, the United Kingdom, is also heavily criticised for its attitude with regard to asylum-seekers’ right to work, a waiting period of over 12 months before permission is granted, and this permission being granted on a case-by-case basis.
It is proposed that one example of best practice is that of Sweden. Sweden has one of the highest proportion of asylum seekers per thousand inhabitants, with a rate of 8.4 in comparison to the European average of 1.2. In Sweden, asylum-seekers receive a Certificate (AT-UND) which states that they do not need a work permit. Asylum-seekers are entitled to this certificate if:
• They provide proper identity papers or prove their identity in some other way,
• Their asylum application is being considered in Sweden,
• And there are “solid” reasons for their application for asylum.
This is a stark difference to that of the narrow and restrictive requirements to obtain a work permit for asylum-seekers in Ireland, and one which evidences the Irish governments’ attitude to those seeking asylum. While Minister Flanagan commented that individuals in Direct Provision would “soon have access to the labour market will also see their capacity for economic independence enhanced”, it remains to be seen how his Department’s proposals achieve this in any material way.
Berkeley Solicitors

VISA REQUIREMENTS FOR UNITED ARAB EMIRATES LIFTED

Mr Charlie Flanagan T.D., the Minister for Justice and Equality has recently announced the lifting of the visa requirement for UAE citizens travelling to Ireland.
This change will be in effect from the 31st January 2018, with Minister Flanagan signing an order to this effect.
This change was affected with regard to the growing economic ties between Ireland and the United Arab Emirates, with Minister Flanagan stating that the lifting of the visa requirement was necessary so that areas such as trade, tourism, education, healthcare and technology can continue to strengthen and improve between the two states.
The Minister stated:
“As Minister for Foreign Affairs and Trade, I led a trade mission to UAE, made an official visit there and welcomed Sheikh Abdullah bin Zayed Al Nahyan to Dublin. Excellent air-links between our two countries are facilitating growing partnerships in trade, education and tourism in particular. A large number of Irish citizens now live in the Emirates and many Irish companies are active on the ground where we have a busy Embassy promoting Irish interests. The UAE is a key economic partner for Ireland and one of our priority markets. I am very pleased we have been able to lift the visa requirement for citizens of the UAE who wish to travel to Ireland and we look forward to welcoming increased numbers of Emirati business people, students and tourists who will travel to Ireland following the lifting of the visa requirement.”
This change is a welcome development for the many clients of Berkeley Solicitors who frequently travel to the United Arab Emirates or have close family connections in the UAE.
Berkeley Solicitors

ISSUES REGARDING VENEZUELAN PASSPORTS

Venezuela continues to be plagued by a number of issues caused largely due to the unpopular socialist president Nicolá Maduro who entered office in 2013. Previous months have seen large anti-government protests, calls for a presidential election, dwindling supplies of food and basic medical supplies as well as the mass exodus of Venezuelan nationals from the State. The issues currently faced by the people of Venezuela are considered a “humanitarian crisis”, and for many Venezuelans leaving the State is considered their best option.
For those Venezuelan nationals who have already left the State one significant issue has arisen that potentially threatens their status in Ireland- the issue of expiring Venezuelan passports. Since March 2017 it has been reported that the authorities in Venezuela allegedly lack the basis materials necessary to print new passports, such as paper and ink. This has meant that the issuing of new passports in Venezuela has essentially come to a halt. Some estimates suggest that approximately 300,000 passports were issued last year, while applications had been made by between 1.8 million and 3 million people.
As a result of the shortage in materials President Maduro signed an emergency decree in October 2017 allowing the extension passports that have expired for two more years. However, this emergency decree is of little comfort to many Venezuelans in Ireland whose passports have already expired and cannot get the extension. To gain the extension Venezuelans living in Europe must travel to one of three embassies located in Belgium, France or Germany. However, this is not possible for those Venezuelans who already have expired passports and are therefore unable to travel. This leaves Venezuelans living in Ireland with expired passports essentially stranded.
To be able to travel to one of the embassies in Europe to obtain the two-year extension, Venezuelans in Ireland have to do this before their passports expire. This is a problem for Venezuelans whose passports expired before the passing of the emergency decree. Another challenge posed is that for Venezuelans who choose to get extension this ends their application for a new passport, leaving them with no refund for their application and still having to pay for an extension.
Many Venezuelans are unable to obtain the extension because the decree requires that there must be space in the expired passport for the new stamp by the embassy. For those Venezuelans whose passports are full of visas and stamps after years of travel this leaves little room for the two year extension stamp.
The expiry of Venezuelan passports also gives rise to issues relating to employment and residency, with employers and landlords considering a valid passport a essential necessity when hiring someone or renting accommodation.
TheJournal.ie reports that for the most part INIS has approached issues relating to Venezuelan passports on a case by case basis, with the Department offering GNIB card extensions of up to 6 months. However, this is a short-term solution to a major crisis, and as of yet it appears the Irish State does not have a long-term strategy for Venezuelans without valid passports.
Berkeley Solicitors

UNLAWFUL SEIZING OF PASSPORTS

The case of Herrera v An Garda Síochana & Others

The plaintiff in this case was an Argentinean national who had been resident in the State since 2012. He was arrested in February 2013 in connection with allegations of serious criminal offences. It was at this stage that the arresting Gardaí took his Argentinean passport. The plaintiff was then charged under S.3 of the Non-Fatal Offences Against the Person Act 1997 and remanded in custody.

While initially refused bail in the District Court in April 2013, the Court then went on to release the applicant following a Habeus Corpus inquiry (a recourse in law with which a person can report alleged unlawful imprisonment to the Court). In the course of these proceedings the applicant voluntarily agreed to return to the District Court on the next date and stay away from the Mullingar area and the alleged victim. The plaintiff was not subject to any travel or travel document restrictions under the Bail Act 1997.

In early May 2013 the plaintiff’s solicitor contacted the Gardaí at the arresting Garda Station in Mullingar requesting the return of the plaintiff’s passport. No formal reply was made by the Gardaí, but the plaintiff’s solicitor was told the passport would not be released at that time.

In this Judicial Review case the plaintiff sought the return of his passport from Gardaí. The plaintiff stated that he had a job offer in Spain, where he is entitled to work, having both a work and residency permit. The plaintiff booked a flight to pursue this employment, but was not able to travel as he did not have his passport. The plaintiff was seeking an interlocutory mandatory injunction, which would compel the return of his passport.

Judgement

The Trial Judge held that the first legal issue to be considered was whether the Gardaí had any lawful basis for retaining the Plaintiff’s passport, with regard to the fact that the Plaintiff was not subject to any legal constraints as to travel or travel documents. It was noted that retaining the plaintiff’s passport in circumstances such as these has the potential to deprive him of his constitutional right to travel. For that reason the basis for retaining the passport would have to be clearly defined in law.

Counsel for the State acknowledged that in these circumstances there was no “relevant statutory provision or common law power” to be cited which would have enabled the Gardaí to retain the Plaintiff’s passport. Counsel for the State argued however that general rules on mandatory interlocutory injunctions meant that the Court should exercise reluctance in considering the granting of the injunction.

Traditionally Courts have been reluctant to grant mandatory interlocutory injunctions as these have the effect of “disposing in substance” of the proceedings at hand, as was pointed out in the case of Attorney General v Lee [2000] IESC 80.

The Trial Judge in this instance adopted the approach of the Supreme Court in Lee in their consideration of whether to grant the injunction by considering whether the defendants can show that they have any potentially sustainable defence to the plaintiff’s action.

The Court found that the defendants would in this instance have to show an “arguable defence” to the plaintiff’s allegation based on either statute or the common-law. The Court found that no such defence was put forth by the defendants. As a result the Court found the plaintiff’s entitlement to an injunction was “all but unarguable”.

The Court also pointed out that Article 40.3.2 obliges the Courts to secure litigants an effective remedy to vindicate their constitutional rights to persons and property and not simply to afford a remedy which is purely theoretical or illusory in character. The Court found this was especially so where injunctive relief is needed to secure the Plaintiff’s core constitutional rights, and a refusal of that relief would hinder the exercise of those constitutional rights.

The Court concluded by granting the Plaintiff’s mandatory interlocutory injunction, with regard to the need to travel and the Gardaí’s lack of legal basis to retain the passport. The Trial Judge then goes on to emphasise “for the avoidance of any possible doubt” that this judgement does not apply to persons who are subject to constraints relating to travel or travel documents under the Bail Act 1997 to secure bail.

This significance of this case is that it confirms that there is no legal basis at common law or in statute that would entitled the State to retain a person’s passport or other travel documents. However, it is important to note that this is only applicable for persons who are not subject to travel or travel document restrictions under the Bail Act 1997.

IRISH RESIDENCE PERMITS REPLACE GNIB CARDS

The Garda National Immigration Bureau card (GNIB card) is currently being phased out and replaced by the new Irish Residence Permit (IRP) since the 11th December 2017. Individuals who are not EEA citizens or a national of Switzerland and who currently have a GNIB card do not have to apply for a new Irish Residence Permit until their GNIB cards expire, are lost or stolen.

The Irish Residence Permit is a certificate of registration with immigration, that complies with the standards of European Union. Every individual who registers with immigration will be given an Irish Residence Permit and will be required to keep their Permit with them at all times. The Irish Residence Permit will display the type of residence granted to the individual. The Irish Residence Permit is evidence that an individual has registered with immigration, however it is not proof of the identity of the individual.

The new Irish Residence Permit will show the Permit holder’s name, photo, date of birth, registration number, the type of immigration permission granted and a microchip containing the individual’s fingerprints.

The Irish Residence Permit will cost three hundred euro each time an individual registers and renews their immigration status, or if they need a new card. The new card does not amend or revoke any previous rights or entitlements granted to persons by immigration.

CHANGE IN POLICY FOR FAMILY REUNIFICATION FOR NATURALISED REFUGEES

There appears to be a recent worrying change in policy within the Family Reunification Section of the Irish Naturalisation and Immigration Services regarding refugee family reunification applications made under Section 18 of the Refugee Act 1996 by naturalised refugees.

The refugee process, including that of family reunification, was previously governed by the Refugee Act 1996. Section 18 of the 1996 Act governed the process of family reunification for refugees in the Irish State. It allowed refugees residing in Ireland to apply to the Minister to obtain permission for a member of their family to enter and reside in the State.

The law governing this area recently changed, with the introduction of the International Protection Act 2015. The 2015 Act, which came into effect on 31st December 2016, covers all international protection issues from this date on. Family reunification for refugees who have declared status under the 2015 Act is governed by sections 56 and 57 of the 2015 Act.

Significantly, section 47 (9) of the 2015 Act specifically states that a refugee loses their refugee status if they become a naturalised Irish citizen:

“A refugee declaration or a subsidiary protection declaration given, or deemed to have been given, under this Act shall cease to be in force where the person to whom it has been given becomes an Irish citizen.”

The 1996 Act contains no such provision.

Recently we have received many refusals of family reunification applications made under the 1996 Act on behalf of naturalised refugees. These applications have been refused on the basis that the naturalised individuals in question are not entitled to apply for refugee family reunification under section 18 of the 1996 Act because they are naturalised Irish citizens, and therefore no longer refugees.

We submit that these refusals are unlawful and we have commenced judicial review proceedings in the High Court challenging their legality.

While refugee status is revoked upon naturalisation under the new 2015 Act, this is not the case under the 1996 Act. Therefore, declarations of refugee status made under the 1996 Act are still valid even if the refugee becomes a naturalised Irish citizen. Their refugee status is not lost and they are still entitled to apply for refugee family reunification under the 1996 Act. This has always been the accepted practice.

The recent refusals appear to be applying the International Protection Act 2015 retrospectively. In effect these refusals are applying section 47 (9) of the 2015 Act to refugees who are declared refugees under the 1996 Act, in finding that their refugee status is revoked upon naturalisation. We submit that this is wholly contrary to the fundamental concept that law cannot have retroactive effect.

Furthermore, many of our clients in exactly the same circumstances, and whose applications were decided under exactly the same law, have been granted family reunification under the 1996 Act while they were naturalised citizens. Now many of our clients are refused family reunification because they are naturalised citizens.

We submit that the recent approach by the Family Reunification Section in now refusing to even consider family reunification applications made under the 1996 Act from naturalised refugees is clearly inconsistent with its previous practice, and it clearly unlawfully discriminates between declared refugees who are naturalised Irish citizens.

The current approach in refusing to consider family reunification applications made under section 18 of the 1996 Act by naturalised refugees reveals a worrying and fundamentally unlawful policy.

VISA DELAYS – THE ATIF AND MAHMOOD CASE

Many of our clients are currently experiencing considerable delays in the processing of their visa applications.

The Irish Naturalisation and Immigration Service indicates that it renders a decision in that majority of visa applications within eight weeks of receipt. It further indicates that Join Family visas take significantly longer, estimating six months for circumstances where the sponsor is an Irish citizen or in Ireland and entitled to immediate family reunification, and twelve months for all other instances.

Our office continues to experience delays well beyond the above outlined time frames. In particular, we highlight that many of our Irish citizen and EU citizen clients are waiting over a year to join their family members in Ireland. Some of our clients are waiting as much as two years.

Such delays are due to the high number of applications submitted to INIS. We believe that such delays are unreasonable and unlawful.

The delay in processing a visa application made in the exercise of EU Treaty Rights under Directive 2004/38/EC and The European Communities (Free Movement of Personas) Regulations 2015 is currently under review in the Court of Appeal in the case of Mahmood and Atif v Minister for Justice and Equality.

The judgment of the High Court was issued on 14th October 2016 and found that while no time frame was specified in the Directive, applicants could expect to receive a decision on their application within 6 months.

This was appealed by the respondent. The appeal was heard by the Court of Appeal recently on 15th December 2017.

We confirm that the Court of Appeal has decided to make a reference to the European Court of Justice pursuant to Article 234 of the EC Treaty. Article 234 provides the mechanism for national courts to refer questions regarding the interpretation of Community law to the ECJ.

We believe the question to be referred to the Court of Justice will relate to the intended timeframes for visa applications for the family members of EU citizens.

The Court of Appeal will then make it’s judgement based on the directions of the Court of Justice.

We will keep you updated of further developments.

RECOGNIZING FOREIGN ADOPTIONS FOR IMMIGRATION PURPOSES

The recognition of a foreign adoptions has proven to be a difficult issue in the context of immigration.

The recognition of a foreign adoption for the purposes of immigration arises in circumstances where an individual who is legally residing in Ireland applies family reunification with their adopted child, where the child is resident in their own country of origin and by consequence, the adoption is done through their country of origin’s law.

In order for such permission to be granted for the child to join their adopted parent in Ireland, the foreign adoption must be registered with the Adoption Authority of Ireland, the statutory body governing intercountry adoptions in the State.

Generally the Adoption Authority will recognize two types of foreign adoptions. Firstly, the Adoption Authority will recognize those adoptions that have been effected in accordance with The Hague Convention on Protection of Children. The Convention is an international agreement which provides for the cooperation among signing countries to ensure that the best interests of the child and their fundamental rights are protected in the process of intercountry adoption.

The second type of foreign adoption that the Adoption Authority will recognize are those adoptions that are effected in a foreign state where the adopting parents are habitually resident in that country at the time of the adoption. An intention to permanently settle in that country is a factor in assessing ‘habitual residence’.

The Adoption Authority thus covers the majority of foreign adoptions. However, in the context of immigration there is clearly a gap. We have encountered circumstances where an adoption has been effected in a non-Hague Convention country, where the adopters were not habitually resident in the child’s country of origin at the time the adoption was effected. Such circumstances can easily arise in the context of immigration where individuals were legally resident in Ireland at the time of the foreign adoption was carried out.

In these circumstances the Irish authorities have refused to recognize these foreign adoptions for immigration purposes. These individuals have lawfully and legitimately adopted their children in the country of origin. Furthermore, they have evidently developed strong emotional bonds with their children.

The only way in which Irish law will recognize a foreign adoption from a non-Hague Convention country is if the adopting parents can establish habitual residence through an intention to permanently settle in the country of origin. Many adopted parents cannot establish an intention to permanently reside in their child’s country of origin. Therefore, these parents are denied this right to family reunification essentially on the basis that the country of origin has not ratified the Hague Convention.

On one hand, the incorporation of the Hague Convention into Irish law is to be welcomed. It ensures that vulnerable children and their families are protected, that the best interests of the child are always at the fore in the process of intercountry adoption and that process of intercountry adoption cannot be abused.

However, it has created unforeseen complications with regards to the recognition of foreign adoptions in the context of immigration. Legally resident individuals are denied the right to be reunited with their legitimately adopted children on the basis that the child’s country of origin is not among the relatively few countries that have ratified the Hague Convention on Protection of Children. This denial is all the more contradictory when one considers that the best interests of the child, the very purpose of the Hague Convention, are being ignored by failing to allow reunification with their parent or parents in Ireland.

The UK has an established procedure for circumstances where the adoptive parents were legally resident in the England or Wales at the time the adoption was carried out, and somewhat circumvents the fact that only a few countries have ratified the Convention. The UK procedure allows for the registration of Hague Convention adoptions, and for ‘Overseas Adoptions’. An Overseas Adoption is an adoption in a country carried out under the law of a country listed on The Adoption (Recognition of Overseas Adoptions) Order 2013. The 2013 Order provides a comprehensive list of eligible countries and thus facilitates the recognition of lawful adoptions from a wider range of countries.

REVISED RULES ON THE STUDENT PATHWAY

In 2016 the Irish government introduced a new Stamp for international non-EEA students who wish to stay in the State once they are finished their Irish degree programmes. The Stamp 1G is a stamp for non-EEA international students which allows those currently holding Stamp 2 permissions to avail of a Stamp 1G Third Level Graduate programme. This Stamp was introduced following the publication of ‘Irish Educated Globally Connected’ in 2016. This publication set out the State’s commitment to reforming the Student Graduate Programme so as to encourage high-performing students to studying in Ireland, and to meet skill gaps within the Irish economy.

The Stamp 1G is now operating under revised rules as of May 2017. These revisions introduced in May have extended the maximum time periods that non-EEA graduates, who have Irish degree awards, who are legally resident on Stamp 2 permissions to remain in Ireland following their studies. These revisions allow non-EEA graduates to continue to work in the State for between periods of between 6 and 24 months, depending on the level of their degree course. Graduates of Level 7 courses are entitled to 6 months maximum. Graduates of Level 8 programmes in the State are entitled to 12 months or less on the 1G student programme, while Graduates of Level 9 programmes or higher are entitled to 12 months, with the potential to renew this permission for another 12 months. The 1G stamp is for the purpose of non-EEA graduates to apply for a general employment permit, a critical skills employment permit or a research hosting agreement.

The conditions for applicability of the programme to non-EEA students who have completed their studies in Ireland are set out on the INIS website. The student:

“1) Must have been notified in writing by the relevant awarding body or institution

on or after 1 January 2017 that they have achieved the award for which they

had enrolled as a student.

2) Must hold a current Stamp 2 student immigration permission and an up-to date

immigration registration card, and must apply within six months of being

notified by the relevant awarding body or institution that they have achieved

the award for which they had enrolled as a student.

3) Must not have already exceeded the seven-year limit on their permission as a

non-EEA national student in the State.

4) May, if having previously benefitted from the Third Level Graduate Programme

at a level 8 award or above, on achievement of a higher level award, e.g. level

9 or above, re-enter the Third Level Graduate Programme, subject to the

overall limit of eight years.

5) A graduate will not be permitted to access the Programme on more than two

separate occasions, subject to 4) above.

6) Must, in line with the obligation on any non-EEA national seeking to renew

their permission to be in the State, comply with the laws of the State. Such

persons are expected to be of good character and not to have come to the

adverse attention of the authorities in any way.”

The Stamp 1G is considered more flexible than the Stamp 2 working permit visa, allowing full-time employment, as opposed to the restrictive working permissions of Stamp 2. The scheme allows graduates to work in Ireland for up to 40 hours per week for a maximum of one year, during which they can apply for further permission to remain in the state under green card or work permit arrangements. Those who hold a Stamp 1G are also exempted from the requirement to obtain a working permit. Those on Stamp 1G are not restricted to certain areas of employment or salary, as is the case with working permits.

The recent changes to the Student Graduate Scheme have been positively received by many international students. The Student Graduate Scheme allows international students to further develop their employment skills in Ireland, while also addressing skill and language gaps in the Irish economy.

AMICUS CURIAE SUBMISSION OF THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION ON THE LUXIMON AND BALCHAND CASES

Background

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.

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

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].