UPDATE ON THE LUXIMON CASE
The Supreme Court has now decided to hear appeals on the Luximon 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 now wish to regularise their status.
The two applicants in the original High Court case of Luximon are two Mauritian nationals, a mother and daughter who originally came to the State in 2006 when the daughter was still a child. Since 2006 the first-named applicant, the mother, has continued to work and reside in the State undocumented. This case concerns an application made to the Minister for Justice by the first-named applicant 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 therefore 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 their application to the Minister, and challenged this decision before the High Court.
The applicant submitted 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.
This argument was rejected by Responding Counsel, submitting that the Applicant had held finite permission to remain which had since expired.
The High Court quashed the Minister’s decision on two grounds. First, Barr J. held that where private and family rights were engaged, the Minister had an obligation to consider them in the context of an application for change of status under s.4(7). Barr J also held that the Minister had not published any guidance as to what criteria she would take into account when considering an application pursuant to s.4(7) for a change to a stamp 4 permission from someone in the same factual circumstances of the applicant. Barr J held that the Minister failed to comply with the principles of natural and constitutional justice, and basic fairness of procedures, in her failure to publish this criteria.
Barr J. held that his decision involved a point of law of exceptional public importance such that it was in the public interest that an appeal be brought.
Court of Appeal
In the Court of Appeal the respondents to the Luximon case were joined with the appellants Balchand, whose case concerned almost identical facts to that of Luximon- the primary difference in the facts was that the Luximon Applicant’s permission to remain had expired, while in the case of Belchand this had not occurred.
The Court of Appeal ruled that before determining “change of status” applications of the applicants, the Minister must consider their rights to private and family life under the Constitution and Article 8 of the European Convention on Human Rights.
It held proposed refusal of an application for permission to remain, under Section 4.7 of the Immigration Act 2004, of persons such as the applicants potentially interferes with their right to respect for private and family life under Article 8.
The Court of Appeal held 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.
The Minister has since gone on to appeal the decision of the Court of Appeal to the Supreme Court. In a published determination, a three-judge Supreme Court held that the issues raised are of public importance, with a substantial number of cases in the High Court immigration case list said to be dependent on their outcome. For this reason, the Supreme Court has allowed an appeal.
The two test cases have implications for non-EEA people who came here as students before the government introduced a policy in 2011 that non-EEA students can only reside in Ireland for a maximum of seven years.
The cases also have implications for all undocumented persons applying for Change of Status under Section 4 of the Immigration Act 2004 as amended.
The Supreme Court held that due to the fact that many persons within the State are to be affected by the potential outcome of these cases this in and of itself renders the case of Luximon a matter of general public importance.
Mr Justice Frank Clarke, Mr Justice John Mac Menamin and Ms Justice Mary Laffoy directed the Minister’s appeals in both cases will be managed together, and a number of cases remain reliant on the outcome of this Supreme Court appeal.
We will keep you updated of when the Supreme appeal is heard.