AVSF v The Minister for Justice

JurisdictionIreland
JudgeMs. Justice Tara Burns
Judgment Date06 October 2021
Neutral Citation[2021] IEHC 634
CourtHigh Court
Docket NumberRECORD NO. 2020/101JR
Between
AVSF
Applicant
and
The Minister for Justice
Respondent

[2021] IEHC 634

RECORD NO. 2020/101JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Immigration status – Family life – Applicant seeking an order of certiorari of the respondent’s decision refusing the applicant’s application for a change in his immigration status – Whether the respondent failed to properly consider or have regard to the applicant’s private and family life rights

Facts: The applicant, a Colombian national, entered the State on a student visa on 4 June 2012. His mother had been a lawful resident in the State since 2001. At the time of the hearing of the matter, she was awaiting a determination on her application for Irish citizenship. The applicant’s permission to remain in the State had been renewed on a number of occasions. Most recently, he was granted permission to remain on Stamp 1 status valid until 25 November 2019. When he applied for Stamp 4 status (or alternatively Stamp 1 status without the need for a work permit), on the expiry of his previous permission, this was refused on 13 January 2020. A proposal to deport the applicant was also notified to him. Leave to apply by way of judicial review seeking an order of certiorari of the decision of the respondent, the Minister for Justice, refusing the applicant’s application for a change in his immigration status from Stamp 1 status to Stamp 4 status was granted by the High Court on 10 February 2020 on the grounds that the respondent erred in law and in fact in finding that no relationship beyond normal emotional ties existed between the applicant and his mother, failed to properly consider or have regard to the applicant’s private and family life rights, and failed to properly consider the applicant’s representations.

Held by the High Court (Burns J) that the respondent erred in her determination that family life within the meaning of Article 8 of the European Convention on Human Rights (ECHR) had not been established and erred in her consideration of the applicant’s private life rights.

Burns J granted the applicant the relief sought at paragraph 4(a) of the statement grounding application for judicial review and remitted the matter to the respondent to conduct a proportionality assessment with respect to his engaged Article 8 rights pursuant to Article 8(2) of the ECHR. Burns J further made an order for the applicant’s costs as against the respondent to be adjudicated upon in default of agreement.

Relief granted.

JUDGMENT of Ms. Justice Tara Burns delivered on 6 October 2021

General
1

The Applicant is a Colombian national who entered the State on a student visa on 4 June 2012. His mother has been a lawful resident in the State since 2001. At the time of the hearing of this matter, she was awaiting a determination on her application for Irish citizenship.

2

The Applicant's permission to remain in the State has been renewed on a number of occasions. Most recently, he was granted permission to remain on Stamp 1 status valid until 25 November 2019. When he applied for Stamp 4 status (or alternatively Stamp 1 status without the need for a work permit), on the expiry of his previous permission, this was refused on 13 January 2020. A proposal to deport the Applicant was also notified to him.

3

Leave to apply by way of Judicial Review seeking an order of Certiorari of the decision of the Respondent refusing the Applicant's application for a change in his immigration status from Stamp 1 status to Stamp 4 status was granted by the High Court on 10 February 2020 on the grounds that the Respondent erred in law and in fact in finding that no relationship beyond normal emotional ties existed between the Applicant and his mother; failed to properly consider or have regard to the Applicant's private and family life rights; and failed to properly consider the Applicant's representations.

The Applicant's Personal Circumstances
4

The Applicant's mother left him in Columbia to come to work in Ireland when he was just 10 years of age. He was left in the care of his maternal grandmother and uncle. The Applicant was sexually abused by his uncle over many years. As with many sexual abuse victims, the Applicant did not disclose this abuse to anyone. He only informed his mother of it in April or May 2019.

5

The Applicant joined his mother when he was 21. He suffers from psychosis which was diagnosed when he was hospitalised suffering from hallucinations. A medical report from Dr. Paul Scully sets out the following:-

“[The Applicant] has been under the care of the psychiatric services in Dublin South City since he was admitted to the psychiatric ward in St. James' Hospital on 20 January 2016. At that point he was diagnosed with an episode of psychosis characterized by abnormal beliefs, paranoid delusions and hallucinations. He remained as an inpatient for four weeks but has done very well with medication, psycho-education, supportive psychotherapy, Occupational Therapy and family therapy.

Over the past 3 years he has done very well from a mental health point of view, and he shows great insight into his previous episode and has been very motivated to prevent relapse. Relapse prevention is crucial to his overall wellbeing and health, and this requires ongoing medication, psychosocial support and other interventions as necessary. He requires ongoing management under my supervision over at least the medium term (at least a number of years) and possibly indefinitely.”

6

In March 2019, the Applicant successfully completed a degree in Business Studies from Griffith College and graduated in November 2019. He has not secured employment and is dependent on his mother financially.

7

The Applicant has no remaining family in Columbia except for his uncle who sexually abused him, and an aunt. Neither does he have any social connections or support.

The Applicant's Permission to Enter and Remain Within the Jurisdiction
8

The Applicant was permitted to enter this jurisdiction on a student visa. Guidelines relating to student visas stipulate that:-

“The maximum time a student may stay in Ireland for the purpose of attending courses at degree level is limited to seven years and students are responsible for managing their studies to ensure compliance with this time limit.”

9

On 15 April 2019, the Respondent granted the Applicant permission to remain on Stamp 1G conditions, as an exceptional measure until 19 June 2019, this being the expiry of seven years since his initial entry to Ireland. The correspondence to the Applicant notifying him of this extension stated:-

“Please note that as you have reached 7 years, no further permission on student conditions will issue…”

10

A further request was made of the Respondent on 18 June 2019 seeking permission for the Applicant to remain in the jurisdiction on Stamp 4 conditions, or Stamp 1 conditions without the need for a work permit, or an extension of his Stamp 1G to enable the Applicant to secure employment. On 25 July 2019, the Respondent granted the Applicant permission to remain, as an exceptional measure, on Stamp 1 conditions for four months to enable the Applicant acquire a work permit. The correspondence to the Applicant notifying him of this decision stated:-

“Please note that further permission will only issue in your individual case on production of a work permit…”

11

The Applicant did not gain employment in that four month period and sought a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT