Balchand v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 15 December 2016
• Neutral Citation: [2016] IECA 383
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 147 of 2016],Neutral Citation Number: [2016] IECA 383 App. No. 2016/147
• Date: 15 December 2016

BETWEEN

YASWIN BALCHAND, CHANDRIKA GOPEE

AND

CIERON LAKSH BALCHAND (A MINOR SUING BY HIS FATHER AND

NEXT FRIEND YASWIN BALCHAND)

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

[2016] IECA 383

Neutral Citation Number: [2016] IECA 383

App. No. 2016/147

THE COURT OF APPEAL

Immigration – Order of certiorari – Judicial review – Appellants seeking an order of certiorari of a decision of the respondent – Whether trial judge was entitled to consider and determine matters which went beyond the issues raised by the notice of opposition

Facts: The applicants/appellants, Mr Y Balchand (the father), Ms Gopee (the mother) and Mr C Balchand (their son), appealed to the Court of Appeal from an order of the High Court (Humphreys J) dismissing an application for an order of certiorari of a decision of the respondent, the Minister for Justice and Equality, communicated on the 22nd October, 2014, refusing the applicants’ application for the renewal of a permission and changes of status pursuant to s. 4(7) of the Immigration Act 2004. In an order of the 7th March, 2016, the trial judge granted leave to appeal and certified that his decision involved points of law of exceptional public importance as follows: (a) Whether the respondent is required in relation to an application to extend a permission the case of a person in a position to renew the application from outside the State to consider related private and/or family rights of such a person either under the Constitution or the European Convention on Human Rights; (b) Whether there is an obligation imposed in law on the respondent to publish a criteria applicable under s. 4(7) of the 2004 Act to a non-EEA student with a current residence permission at the time of the application who seeks a further permission to reside in the State.

Held by Finlay Geoghegan J that the trial judge was in error in his approach to the determination of the issues raised by the statement of grounds and by the notice of opposition in this judicial review application. The Court held that he was not entitled to consider and determine matters which went beyond the issues raised by the notice of opposition; in addition he drew incorrect conclusions from the judgments of the Court in CI v Minister for Justice, Equality, and Law Reform [2015] IECA 192 and that of the Supreme Court in PO v Minister for Justice and Equality [2015] IESC 64. Finlay Geoghegan J held that the applicants were entitled to orders of certiorari of the decisions communicated on the 22nd October 2014. The Court noted that the applicants had expressly relied upon family rights and private life rights pursuant to Article 8 ECHR. Finlay Geoghegan J held that the Minister in considering the application and proposing to take a decision not to renew the permissions of the father and the mother is bound to do so in accordance with constitutional principles and by reason of s. 3 of the European Convention of Human Rights Act 2003, in a manner consistent with the State’s obligations under ECHR. Finlay Geoghegan J held that on the facts of this application the Minster was obliged to consider the Article 8 rights contended for on behalf of the applicants. Finlay Geoghegan J held that the manner in which this should be done is similar to the manner in which the Minister currently approaches a consideration of Article 8 rights in the context of a proposal to deport subject to the variation indicated in the judgment in Luximon v Minister for Justice [2015] IEHC 227.

Finlay Geoghegan J held that she would vacate the order of the High Court and grant an order of certiorari of the decisions communicated on the 22nd October, 2014 and remit the applications for consideration and decision by the Minister.

Appeal allowed.

JUDGMENT delivered on the 15th day of December 2016 by Ms. Justice Finlay Geoghegan

1 This appeal is from an order of the High Court (Humphreys J.) dismissing an application for an order of certiorari of a decision of the Minister communicated on the 22nd October, 2014, refusing the applicants' application for the renewal of a permission and changes of status pursuant to s. 4(7) of the Immigration Act 2004 (‘the 2004 Act’). The order was made for the reasons set out in a written judgment delivered on the 4th March, 2016.

2 In the order of the 7th March, 2016, the trial judge granted leave to appeal and certified that his decision involved points of law of exceptional public importance as follows:-

(a) Whether the respondent is required in relation to an application to extend a permission the case of a person in a position to renew the application from outside the State to consider related private and/or family rights of such a person either under the Constitution or the European Convention on Human Rights.

(b) Whether there is an obligation imposed in law on the respondent to publish a criteria applicable under s. 4(7) of the Immigration Act 2004 to a non-EEA student with a current residence permission at the time of the application who seeks a further permission to reside in the State.

3 The High Court judgment herein was delivered after the High Court judgment in Luximon v. Minister for Justice [2015] IEHC 227. This appeal was heard with the appeal in Luximon. The approaches of the two trial judges were quite different and they reached differing conclusions. This judgment takes into account submissions made in both appeals by the parties and on behalf of the Irish Human Rights and Equality Commission as amicus curiae.

Background facts

4 The first applicant (to whom I will refer as ‘the father’) is a citizen of Mauritius. He arrived in the State on the 7th December 2006, at a time when citizens of Mauritius did not require a visa to enter the State. He registered for studies and was granted a permission to remain in the State with student conditions referred to as ‘Stamp 2’ conditions or permission. The father married the second named applicant, the mother who is also a citizen of Mauritius in June 2008. Shortly thereafter she also arrived in the State and registered as a student and was granted a permission to remain in the State under ‘Stamp 2’ conditions.

5 On the 17th July, 2009, their son, the third named applicant, was born in the State. He has lived his entire life in the State. It was deposed that he has never even visited Mauritius. His first language is English, which he speaks with his parents and had commenced primary school at the time of the application to the Minister, which gave rise to the contested decision.

6 The father and the mother regularly renewed their permissions to be in the State between 2006/2008 and 2013. On each occasion, the permission was renewed with ‘Stamp 2’ conditions. This permitted them to be in the State as students; work for 20 hours during school terms and 40 hours during vacations. It does not appear that any formal permission was sought of obtained for the third named applicant, their child to be in the State. It is not clear if there is any administrative scheme in place for registration of such a child born in the State with the immigration authorities. No point has been taken in relation to this and nothing turns on that in this appeal.

7 On the 1st January, 2011, a new policy document was adopted regarding non- EEA students. It set out time limits for the pursuit of degree courses and non degree courses and an overall time limit of seven years presence in the State as a student.

8 On the 19th December, 2013, solicitors for the applicant sent a lengthy submission to the Minister seeking a variation of the permissions and to change to ‘Stamp 4’ status which permits residence in the State with an entitlement to enter employment and receive social welfare payments and does not require the applicants to be students. At that time the father's then permission was due to expire on the 30th January, 2014. Whilst the application was expressed to be for a change of status it was also in substance an application for a renewal of permission to be in the State and was treated as such. The application indicates that the mother at the time had a permission with Stamp 2 conditions until 30th July 2014.

9 On the 22nd October, 2014, two separate decisions issued addressed to the father and the mother refusing ‘an extension of your immigration permission’. In each case a temporary extension of student permission up to the 3rd December, 2014, was authorised to permit each to finalise their affairs in Ireland. After that it was stated ‘at that stage you MUST leave the State unless you have secured another form of immigration permission’.

10 It appears that by this time the mother had obtained an extension of her permission with ‘Stamp 2’ conditions until the 18th July, 2015. This was not adverted to by the immigration official making the decision communicated by letter of 22nd October, 2014 and notwithstanding that she held such permission she was on the face of the decision required to leave Ireland by the 3rd December, 2014.

11 The application made on behalf of the applicants referred expressly to their alleged rights to respect for private and family rights pursuant to Article 8 ECHR and also to rights guaranteed by Articles 40 and 41 of the Constitution. The position of their child who was born in and had never left Ireland and was at school was relied upon and express reference was made to the then entitlement of the mother to remain in Ireland for a longer period of 18 months than the father to finish her studies and the potential disruption in their family life if the father was refused a renewal of his permission. The decision of the Minister did not refer to the alleged family or private life rights of the applicants nor to the position of their child.

12 By order of the High Court...