Balchand v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 March 2016
• Neutral Citation: [2016] IEHC 132
• Docket Number: [2014 No. 687 J.R.]
• Court: High Court
• Date: 04 March 2016

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, AS AMENDED

BETWEEN

YASWIN BALCHAND, CHANDRIKA GOPEE

AND

CIERON LAKSH BALCHAND (A MINOR SUING BY HIS FATHER AND NEXT FRIEND YASWIN BALCHAND)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2016] IEHC 132

[2014 No. 687 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act, 2000 – S.4(7) of the Immigration Act 2004 – Denial of permission to stay in State – Art. 41 of Constitution of Ireland – Art. 8 of European Convention on Human Rights (ECHR)

Facts: The applicants sought an order for quashing the decision of the respondent refusing to renew their permission to stay in the State beyond the prescribed period for non-EEA students. The applicants contended that the respondent was obliged to consider the private and family life of the applicants under art. 41 of the Constitution or art. 8 of ECHR while denying the permission to be in the State.

Mr. Richard Humphreys refused to grant the desired relief to the applicants and dismissed the application. The Court following the decision of the Supreme Court in Hussein v. Minister for Justice, Equality and Law Reform held that the respondent enjoyed unfettered discretion in the formulation of relevant policies and the decision of the respondent could not be interfered except on the ground of materiality. The Court held that the person who fell into the “precarious” category remained subject to minimal to non-existent rights under art. 8 of ECHR and they could not claim right to stay in the State as a matter of right. The Court opined that it would be opposed to the Immigration policy of the State of Ireland if the visitors on the transitional basis were allowed to assert some form of right to stay in the State.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of March, 2016

1 The applicants in this case are two students from Mauritius and their six year-old son. The parents challenge the decision of the Minister to refuse to renew their permissions to be in the State and complain that account should have been taken of their private and family life.

2 On 7th December, 2006, the first named applicant arrived in the State in possession of a ‘stamp two’ student permission.

3 On 21st June, 2008, the first and second named applicants married. Shortly thereafter on 25th June, 2008, the second named applicant arrived in the State, also in possession of a stamp two permission. At the time of the entry of the applicants into Ireland, Mauritius was not a country whose nationals required a visa to enter. That situation has changed in the meantime.

4 On 17th July, 2009, the third named applicant was born in the State.

5 With effect from 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. While great stress has been laid on the lack of formality at the time of original entry, that is irrelevant because policies may lawfully tighten up from time to time and it is clear that the applicants were properly subject to the 2011 policy as persons with no other right or title to be in the State than such permissions as the Minister saw fit to grant as she saw fit.

6 The policy document did not set out any clause whereby the terms of the scheme could be waived in exceptional circumstances. It was accompanied by a further document for the information of persons in a transitional category such as the applicants reaffirming the maximum period of seven years' presence in the State (exhibited at exhibit KOS4 to the affidavit of Kevin O'Sullivan).

7 The document made abundantly clear that presence in the State as a student would not be taken into account for the purposes of long-term residency, and that no family reunification rights arose.

8 On 19th December, 2013, shortly before the expiry of the first named applicant's permission, solicitors for the applicants sent a lengthy (125-page) submission to the Minister seeking a variation of the permissions and to change to ‘stamp four’ status (namely residence in the State with an entitlement to enter employment and receive social welfare payments) based on their long residence.

9 On 30th January, 2014, the first named applicant's permission expired. He was, thereafter, unlawfully in the State until 22nd October, 2014, when the application for long-term residency was refused by the Minister pursuant to s. 4(7) of the Immigration Act 2004. The parents were directed to leave the State by 3rd December, 2014. The first named applicant was granted a temporary and transitional permission to be in the State for the period between 22nd October, 2014 and 3rd December, 2014, in order to finalise his affairs. A similar clause was included in a letter to the second named applicant, but in that regard it had been overlooked by the Minister and she still had a subsisting permission at that point.

10 An application for leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was made to Mac Eochaidh J. on 20th November, 2014, within time. Leave was granted on 1st December, 2014.

11 As of the date of the hearing, 17th February, 2016, there had been no proposal to make a deportation order.

Is the Minister required to consider private and family life when deciding on a permission?

12 The present application arises in slightly unusual circumstances in that it raises an issue very similar to that decided by Barr J. in Luximon v. Minister for Justice and Equality [2015] IEHC 227 (20th March, 2015), a decision regarding the extent to which the Minister is required to give consideration to private and family rights under Art. 41 of the Constitution or art. 8 of the ECHR, in the context of persons who applied for permission at a time when they did not have a subsisting permission to remain in the State. In the present case, the parents did have subsisting permissions as of the date of their application.

13 On what might be termed a first principles basis, having regard to cases such as East Donegal Cooperative Livestock Mart v. Attorney General [1970] I.R. 317, and to s. 3 of the European Convention on Human Rights Act 2003, I would venture to hope that it would be uncontroversial to suggest that private and family rights (or any constitutional or ECHR rights) should be considered in the context of an administrative decision if two conditions are met:-

(i) that applicant enjoyed those rights in the first place to the appropriate threshold of substance and materiality; and

(ii) that those rights were in fact improperly interfered with by the decision to a material extent.

14 Clearly, an applicant cannot quash a decision by reference to rights which he or she does not enjoy. Nor can a decision be quashed if it does not interfere with those rights in an unconstitutional or unlawful manner.

15 To the extent that Luximon is to be read as incorporating the test I have just referred to, then I would have no hesitation in following such an approach. The real question is whether either or both of those conditions are met in circumstances such as the present case.

Are private or family rights engaged?

16 In Luximon, Barr J. took the view that the applicant's rights in that case were sufficiently engaged to warrant the quashing of the refusal of a permission by reason of a failure to consider private and family rights.

17 The one thing that the court in Luximon cannot be criticised for is failing to engage in a form of ‘ inspired legal clairvoyance’ ( per O'Donnell J. in People (D.P.P.) v. J.C. [2015] IESC 31 at para. 53) in anticipating decisions that had not, at that time, being handed down.

18 Subsequent to Luximon, the Court of Appeal in C.I. v. Minister for Justice, Equality, and Law Reform [2015] IECA 192 (30th July, 2015), at paras. 42 to 46, held that, in general, persons whose situation was ‘ precarious’ did not enjoy private and family rights of sufficient weight to engage art. 8.

19 Furthermore, and also after the decision of the High Court in Luximon, the Supreme Court gave judgment in P.O. v. Minister for Justice and Equality [2015] IESC 64 (16th July, 2015). In that case, both MacMenamin J. (at para. 26) and Charleton J. (at para 35) referred to the minimal art. 8 rights of persons whose situation in the State is precarious.

20 In Li (No. 1) v. Minister for Justice and Equality (No. 1) [2015] IEHC 638 (17th October, 2015), I had also come to the view that persons whose presence in the State was either illegal or precarious generally enjoyed art. 8 rights that were either of minimal weight or non-existent (at para. 65(iii)).

21 Applying C.I. and P.O., as I am required to do, I conclude that students who are admitted into the State pursuant to a scheme with a very clear seven-year maximum duration of permissions are persons who firmly fall into the ‘ precarious’ category, and in general, their private and family rights to remain in the State are minimal to non-existent and do not need to be considered by the Minister at any stage of the process, because they simply do not reach the level of significance required to engage such consideration.

22 While there will of course be some disruption to the applicants, including the third named applicant, this is not so severe as to mean that re-location back to the country of nationality is not possible, especially bearing in mind that children often find it easier than the adults to adapt. The point is made that the child speaks English, but no evidence has been presented that this will impair life in Mauritius, which is a partly-Anglophone country, or more fundamentally that he could not learn any of...