THE COURT OF APPEAL HAS ISSUED TWO JUDGMENTS WHICH HAVE FAR REACHING CONSEQUENCES FOR APPLICATIONS UNDER SECTION 4(7) OF THE IMMIGRATION ACT 2004
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  IECA 382 and Balchand & Ors -v- The Minister for Justice and Equality  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  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.
Both of the judgments are in relation to families from Mauritius who had applied to the Minister for permission to remain in Ireland, making ‘change of status’ type applications. The applicants wanted to change their status to Stamp 4 status which allows successful applicants to work, operate a business etc. and establish long term residence in Ireland, as opposed to student status, Stamp 2 which they were initially granted.
The appeal cases were heard together in June as they raised similar issues of fact and law. They appear to be ‘test cases’ for the obligations, if any, on the Minister in considering applications made pursuant to section 4(7) of the Immigration Act 2004.
Unanimous judgement was delivered by Ms Justice Finlay Geoghegan, who dismissed the Minister’s appeal in the Luximon case and held that the Minister is obliged to consider the rights of an applicant arising from Article 8 ECHR and the Irish Constitution.
The Minister’s position in these cases was that even if private life rights are engaged by applicants, there was no obligation on the Minister to consider these in the context of an application under Section 4(7). Similarly, in the Balchand case Ms Justice Finlay Geoghegan held that the trial judge had erred in his assessment of the applicants’ rights and granted the reliefs sought.
The importance of these appeal decisions is significant and affects persons who have made an application to the Minister for further permission or a variation in their immigration permission in order that they may continue to reside in Ireland legally, stay and work legally, and raise their families here. It is hoped that these appeal decisions will bring some clarity to this area of the immigration system which has been clouded in some amount of confusion following the very different judgments of Luximon and Bachland in the High Court.
As a consequence of these decisions, the Minister will be obliged to consider applicants’ private life rights in any application under section 4(7) of the Immigration Act 2004. The Minister’s previous position appeared to be that she will not consider these rights but advises applicants that it will do so at the deportation stage.
The court ruled that the Minister for Justice must consider Article 8 rights to private and family life under the European Convention on Human Rights and the right to family and private life under Irish constitutional law before determining any change of status applications.
The Court of Appeal decided that a refusal by the Minister to grant a change in immigration permission under Section 4(7) could potentially interfere with applicant’s rights to respect for family and private life and could trigger Article 8 implications.
The effect of the judgement is that the Department of Justice must now consider all applications in line with the findings of the Court of Appeal and it specifically must consider whether refusing such applications would interfere with the applicants’ rights to private and family life.
The Court held in both appeal judgments that the Minister is not obliged to have a published policy in relation to applications under Section 4(7)
It is unfortunate that these appeal decisions have not fully clarified the issue of whether applications from persons whose immigration permission has expired are eligible to make applications under Section 4(7). However, it is noted that in Luximon the applicant’s permission had expired at the time of application for further permission to reside in the State and the court did not raise this as an issue that would prevent consideration of the application by the Minister.
We await to see the impact of these Court of Appeal judgments in the decisions and practice of the Department relating to applications under Section 4(7).
BERKELEY SOLICITORS IMMIGRATION TEAM