LUXIMON CASE: SUPREME COURT’S JUDGEMENT

Berkeley Solicitors is happy to announce that the Irish Supreme Court has delivered its judgment in the cases of Luximon v Minister for Justice and Equality and Balchand v Minister for Justice and Equality.

These proceedings where both appealed from the Court of Appeal by the Minister for Justice and Equality.

The outcome of this case is one that potentially affects a large number of our clients, and we note that this judgement is a positive judgement for many non-EEA persons resident in Ireland, who came to the State before 2011 as students. We submit that the case has helpfully clarified the Minsiter’s obligations when assessing applications under Section 4(7) of the Immigration Act 2004.

We have previously discussed the Court of Appeal case of Luximon and Amicus Curiae in the Court of Appeal case in other posts on our Immigration Blog.

The History of the cases:

The cases of Luximon and Bachland concerned Mauritian nationals who first came to the State as students,11 years ago. Both applicants went on to have children after a number of years and viewed Ireland as their place of permanent residence. Through work, education and familial and social connections built over a decade these families had become well-established in the State.

In 2011 a new scheme was introduced entitled “O, registered in Ireland before 1st January 2011”. Under this scheme explicit time limits were set regarding the length of time students could remain in the State.

Between 2012 and 2013 both applicants made applications under Section 4 (7) of the Immigration Act 2004 which states as follows:

“A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefore by the non-national concerned.”

Following the refusal of their Section 4(7) application, Danye Luximon and her daughter challenged this decision in the High Court.

The applicants, in their High Court challenge, contended that the statutory discretion under Section 4 of the 2004 Act must be exercised in accordance with the provisions of Section 4 itself, the Constitution, and the European Convention on Human Rights.

The High Court quashed the minister’s decision, holding that the Minister had an obligation to consider family and private life rights when they arose in the context of a Change of Status application and that the Minister failed to comply with the principles of natural and constitutional justice, and basic fairness of procedures by failing to make available the criteria under which she considered such applications. Budd J allowed an appeal by the Respondent on the basis that it was in the public interest.

The applicant family in Bachland was unsuccessful in challenging the refusal of their Section 4(7) application in the High Court, with the High Court finding on this occasion that the applicant’s residence was “precarious” in nature.

Both cases where appealed to the Court of Appeal.

The Court of Appeal found for the applicants in both cases and affirmed the decision in the High Court of Budd J.

The Court of Appeal judgement was appealed to the Supreme Court by the Respondent (The Minister for Justice and Equality).

Supreme Court Judgement

by Mr Justice Mac Menamin, it was held that the Minister for Justice must take account of an individual’s rights to private and family life under Article 8 of the ECHR in assessing applications under section 4(7) of the Immigration Act 2004.

Each case should be assessed on the particular facts of the case at hand. Any decision made without taking the individual’s private life into consideration is “unlawful”.

The Judge disagreed with the finding of the High Court in the Bachland case, that the applicant’s immigration status was “precarious”, stating that this is typically used in jurisprudence to refer to those whose status is “attenuated” or weak.

The Judge on the contrary found that the applicants are “lawful, long-duration residents”.

Notably the judgement goes on to find that even if a person’s position was indeed “precarious” that this would not absolve the Minister of observing their duty of fairness.

The Judge differentiated the facts of these case from cases concerning short-term visitors, those in temporary employment, asylum seekers and those without established links to the state.

The Judge also stressed that this judgement only required the Minister for Justice to give “consideration” to the the right to private life.

Justice Mac Menamin found that the way in which the Minister for Justice had refused the Section 4(7) applications of the applicants to be unlawful.

Justice Mac Menamin stressed in their judgement that the judgement was based entirely on the facts at hand, and that this judgement would not apply to all cases.

Justice Mac Menamin in particular emphasises the fact that the applicants came to the State lawfully and were long term established residents and had at all times renewed or attempted to renew their permission to remain.

Reaction

Reactions to the Supreme Court’s judgement have generally been very positive. We refer to the statement of Ms Jane O’Connell, Legal Officer in MRCI:

“The Court emphasised the need for fairness and transparency in Ireland’s immigration policies. This does not mean regularisation for everyone or even for people who meet certain criteria, but it may at last mean a move towards a more humane immigration system in Ireland. We commend both families involved – it takes great bravery to go up against the State, particularly as a migrant.”

We also note the statement of the Department of Justice and Equality made to TheJournal.ie.

“The Supreme Court judgement in this complex case is only recently to hand. The Department of Justice and Equality will require some time to examine and assess its implications in greater detail in conjunction with the Office of the Attorney General.” 

It remains to be seen how this judgement will affect the large number of persons whose applications under Section 4(7) have been pending, awaiting this judgement.

It appears to us to be a positive and helpful judgement from the Supreme Court and we hope that it will result in the issuance of positive decisions in the near future.

We wish to congratulate the families involved in these important cases and their legal teams.

Once the practical effect of this judgement becomes clear we will update The Immigration Blog.

FAMILY REUNIFICATION FOR NATURALIZED REFUGEES

On the 26th February 2018, Mr Justice Humphries delivered his judgement in the three test cases concerning the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees.

The cases were chosen to represent a larger number of cases currently in the High Court, all challenging the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees. These decisions were issued by the Minister contrast to the former policy to accept that naturalized refugees continued to have the rights to family reunification pursuant to the 1996 Refugee Act. An internal policy change implemented by the Minister, without notice to the applicants, resulted in the refusal of a large number of applications in circumstances where they would have previously been granted family reunification.

The Minister argued that a refugee ceases to be a refugee on acquiring Irish citizenship pursuant the definition of a refugee in national and international law, and a formal statutory provision for the revocation of their refugee status is not required.

The applicants argued that a formal withdrawal or cessation of refugee status is required by statutory provision, and while this is implemented in the International Protection Act 2015, it was not implemented under the Refugee Act 1996 as amended.

Mr Justice Humphries found in favour of the State, indicating that the cessation of refugee status is declaratory in nature, and refugees who become naturalized automatically cease to be a refugee, thus losing their refugee rights to family reunification.

The High Court decision is now the subject of an appeal to the Court of Appeal. We will post further updates on this case when there are any developments in the Court of Appeal.

Berkeley Solicitors

IRELAND COMMENCES RATIFICATION PROCESS OF THE UN CONVENTION ON DISABILITY RIGHTS

On the 7th March 2018, the Dail has commenced the process of ratification of the UN Convention of the Rights of Persons with Disabilities 2006, following the enactment of the Disability (Miscellaneous Provisions) Bill 2016.
The Tánaiste and Minister for Foreign Affairs Simon Coveney will be signing the Instrument of Ratification, which will come into force 30 days after it is received by the UN.
Ireland will be the last member of the EU to ratify the 2006 Convention, despite having signed the framework in 2007.
Once ratification has been completed, the Convention of the Rights of Persons with Disabilities will then have legal effect in the State and give specific legal rights to individuals with disabilities.
The Convention protects equal treatment for all people with disabilities with respect to human rights and fundamental freedoms. It has eight guiding principles: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women, and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
In respect of immigration cases, this is a very relevant development. It is common that visas, residence permissions or family reunification applications are granted or refused on the basis of a person’s financial and employment circumstances. This has put some persons with disabilities at a specific disadvantage when they do not have the capacity to earn a living, and therefore would potentially be excluded from a particular visa or residence permission, or perhaps never benefit from the option of family reunification
This affects non EEA nationals in terms of applications for visas and residence permissions, and also Irish citizens and EEA citizens who are applying for family reunification where the applications have specific financial thresholds.
In the case of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015, persons with disabilities are not included as a category of persons who are deemed to be exercising EU Treaty Rights. Both the Directive and Regulations are silent on the matter, and individual cases fall to be determined at the discretion of the Minister on a case by case basis.
We have made representations to the Minister on behalf of some clients with disabilities arguing that their disability cannot lawfully be relied on as a ground to deny them a visa, residence permission or family reunification permission when this would discriminate them against a person without such a disability.
The ratification of the Convention of the Rights of Persons with Disabilities is hugely significant as the Minster for Justice and Equality is now obliged to implement and protect the rights of persons with disabilities in all immigration cases, and such persons can rely on the Convention to enforce their rights in the determination of their immigration cases, and before the courts if necessary.

Berkeley Solicitors

REDUCTION IN SUCCESSFUL HUMANITARIAN APPLICATIONS

The past two years have seen a steep drop in the rate of successful humanitarian applications in the State. While 2015 saw a 60% rise in the granting of leave to remain over one year (Holland, 2015) the introduction of the International Protection Act, 2015 has seen the rate of humanitarian leave granted plummet to only 163 people in 2017, down from 465 in 2016 and 1,201 in 2015 (Power, 2018).

The Leave to Remain process is explained by the McMahon report (Department of Justice, 2015) as follows;

“The consideration by the Minister for Justice and Equality of whether or not to issue a deportation order in respect of a person who has been deemed not eligible for protection. If the decision is that a deportation order should not issue, leave to remain in the State is granted under Ministerial discretion following consideration of representations submitted, including in relation to the matters set out in section 3 of the Immigration Act 1999.”

Attention was brought to this steep drop in humanitarian leave being granted by TD Catherine Martin of the Green Party, representing Dublin Rathdown. In response to Ms Martin’s parliamentary question, Minister Charlie Flanagan’s answer was as follows (Dáil Debates,23rd January 2018);

“I am advised by the Irish Naturalisation and Immigration Service (INIS) of my Department that the information sought by the Deputy is included in the table.

The number for 2017 is influenced by the introduction of the new International Protection Act which required significant changes to procedures as well as the introduction of the transition provisions of the Act which required a significant number of cases to revert for processing to the International Protection Office.  All of this impacted on the number of cases brought to finality. With the new procedures bedded down the rate of processing is expected to increase significantly in 2018 and beyond.

Year    Leave to Remain

2016    465

2017    163

Total    628”

As stated by Minister Flanagan, it is presumed that the drop in successful humanitarian leave applications  is largely due to the introduction of the International Protection Act, 2015. The International Protection Act, 2015 was designed to streamline and improve the asylum process in the State, which was infamously overburdened and delayed. Minister Flanagan in the above statement, submits that the drop in successful humanitarian applications is due to moving all cases into the simplified asylum process introduced by the Act, and not due to an increased rate of rejection for applicants.

It remains to be seen whether this drop in applications is in fact due to the transitional issues associated with the State’s reform of the asylum and leave to remain process, or if it instead indicative of a continuing issues with delay in spite of the new Act.

Dáil Debates, Asylum Applications Data, 250, 23rd January 2018, [https://www.kildarestreet.com/wrans/?id=2018-01-23a.505&s=%22leave+to+remain%22#g506.q] [Accessed 6 Feb.2018].

Department of Justice (2015). Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers. [online] Dublin: Department of Justice. Available at: http://justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf [Accessed 6 Feb. 2018].

Holland, K. (2015). Number of asylum seekers given leave to stay up by 60%. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/number-of-asylum-seekers-given-leave-to-stay-up-by-60-1.2437131 [Accessed 6 Feb. 2018].

Power, J. (2018). Sharp fall in asylum-seekers granted humanitarian reprieve. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/sharp-fall-in-asylum-seekers-granted-humanitarian-reprieve-1.3379239?mode=amp [Accessed 6 Feb. 2018].

WORKPLACE RELATIONS COMMISSION CASE CONCERNING THE EMPLOYMENT RIGHTS OF AU PAIRS: McCORMACK v GENEROSO

The case in question concerns an appeal by the employers, Ms Bernardine & Thomas McCormack against the Decision of an Adjudication Officer in the Labour Court.

Facts of the Case:

The AU pair in this case, a Brazilian national, came to Ireland on a Stamp 2 visa for the purpose of learning English. This Stamp 2 allowed her to work a maximum of 20 hours a week during term time, and 40 hours outside of term time. She was hired as an AU pair by the employers, Mr and Ms McCormack in February 2016. Ms Generoso was paid €150 a week and was provided with bed and lodgings. Ms Generoso’s effective hourly rate was €2.78 per hour.

During her time as an AU pair Ms Generoso worked 54 hours a week. She was required to work from 7am-5pm, as well as four hours of babysitting for her employers.

In July 2016, Ms Generoso gave Mr and Ms McCormack two days notice that she would be resigning. She stated that this was due to her poor working conditions.

Mr McCormack then asked Ms Generoso for four weeks pay, which was €540. In Court while giving evidence, Mr McCormack stated that this was because at the start of Ms Generoso’s employment she was told that four weeks’ notice was required.

Ms Generoso then gave Mr McCormack €510, which was all the money she had. She then borrowed €30 from a friend to make up the difference.

Following her resignation, Ms Generoso took legal proceedings against her employers under the Terms of Employment (Information) Act, 1994, where it was held that the Respondent was in breach of the Act by not providing the Complainant with a written contract of employment. That decision was not appealed.

Labour Court Proceedings:

Ms Generoso brought a claim under the 1991 Act to the Workplace Relations Commission on in September 2016 in which she alleged that the €510.00 acquired by Mr McCormack was unlawfully deducted from her wages.

The Court found that Ms Generoso was never given a written contract of employment. Under the Minimum Notice and Terms of Employment Act, 1973 at Section 6 an employee is obliged to give an employer one week’s notice when terminating employment if they have service of 13 weeks or more. This Act, the Court found, does not provide the employer with a remedy for when this is not complied with, nor does it allow for the taking of an unlawful payment by the employee to the employer.

In considering that the €510 given to the employer was unlawful, the Court referred to Section 5 of the 1991 Act which states that a payment can only be lawful, in respect of an omission on the part of he employee, if it is provided  by the contract of employment or law. The Court found that payment in respect of Ms Generoso’s omission was not required by law or by contract.

In summary the Court found that the payment of €510 was not consented to by the Complainant, and found that the Respondents breached the 1991 Act when they demanded this unlawful payment, with the Court ordering the Respondents to repay the €510.00 in discharge of Ms Generoso’s claim.

The respondents appealed the above decision on mostly technical grounds, with one of the most interesting grounds of appeal being that the Complainant had no entitlement to make the complaint to the Labour Court under the 1991 Act because she was working under an illegal contract. It was submitted that the contract was illegal because Ms Generoso worked an average of 54 hours a week, which was in excess of her permitted hours under Stamp 2, with legal representation for the Respondents relying on Amjad Hussein v The Labour Court[2012] IEHC 364 where it was held that the Labour Court could not lawfully entertain an application for leave in respect of an employment contract which was substantially illegal.

This ground of appeal was wholly rejected by the Labour Court. It was found that Ms Generoso entered into a valid contract of employment, and that this contract could not be rendered illegal by the amount of hours her employers required her to work. The Court also distinguished this case from the case of Hussein, where the employee in that case Mr Younis had continued to work following the expiry of his work permit which was a criminal offence.

The Court then determined that Ms Generoso was owed arrears of wages in the amount of €4,947.05 in discharge of her claim.

Berkeley Solicitors

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.