The judgement of the Court of Appeal in the case of Danibye Luximon & Another v The Minister of Justice and Equality,heard in June 2016, remains pending. The judgement is eagerly awaited as it is expected to clarify the legalities around the Minister’s policies on change of status applications.
The case concerns an application to the Minister for Justice from an undocumented student applying for stamp 4 residence permission. The application was submitted and considered 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 therefor by the non-national concerned.
For many years, this section was relied on by persons who were undocumented in the State to apply to the Minister for Justice to regularize their status in the State. The applicant in the Luximon case was unsuccessful in this application, and challenged the decision before the High Court. The High Court found the Minister’s refusal was unlawful because the Minister failed to take into account any rights the applicants may have regarding personal and family rights under Article 40.3 and Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights; and secondly, because the Minister failed in her obligation to publish the policies applied to such applications under Section 4 (7).
The Minister appealed this High Court decision to the Court of Appeal and we now await the judgement.
Meanwhile, the Minister for Justice has published general guidelines confirming that it is only possible to apply for a renewal or variation in immigration permission under Section 4(7) of the Immigration Act 2004 when the applicant has a valid current permission to reside in the State. In other words, the change of status application will not be accepts from undocumented persons.
This is a significant departure from the policy of the Department of Justice for many years. The effect is that any undocumented person will have to utilise the application procedure know as the Humanitarian Leave to Remain,under Section 3 of the Immigration Act 1999 as amended, in order to have their right to reside considered. A unsuccessful Humanitarian Leave to Remain will result in a deportation order.
We will update this blog on review of the Court of Appeal’s decision in Luximon.