Bundhooa v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 756
• Docket Number: 2016 No. 782 JR
• Date: 21 December 2018
• Court: High Court

Between:

DHANWANTEE BUNDHOOA

APPLICANT

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 756

Barrett J.

2016 No. 782 JR

THE HIGH COURT

Immigration – Permission to remain – Certiorari – Applicant seeking permission to remain – Whether the respondent’s decision offered good reason for refusing to deal with the applicant’s application

Facts: The applicant, Ms Bundhooa, a citizen of Mauritius, held ‘stamp 2’ student permission that expired in 2011. Thereafter she was illegally present in Ireland. Then, on 30.07.2015, after marrying an EU national, she applied for a residence card under the EC (Free Movement of Persons) (No 2) Regulations 2006. On 05.01.2016, she was granted temporary permission under those Regulations to stay in Ireland on ‘stamp 4’ conditions. On 30.04.2016, her residence card application was refused on the basis that the marriage was one of convenience. On 23.05.2016, she applied for permission to remain on a ‘stamp 4’ basis, invoking s. 4 of the Immigration Act 2004. By decision of 22.09.2016, the respondent, the Minister for Justice and Equality, refused to deal with that application. Ms Bundhooa applied to the High Court seeking, inter alia, an order of certiorari in respect of that refusal.

Held by Barrett J that what the Minister clearly and correctly sought to convey was that because Ms Bundhooa did not hold an extant permission under s.4 there could be no varying same. Barrett J considered that the Minister’s decision offered good reason for refusing to deal with Ms Bundhooa’s application.

Barrett J held that he would refuse the application.

Application refused.

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2018.

1 Ms Bundhooa is a citizen of Mauritius. She held “stamp 2” student permission that expired in 2011. Thereafter she was illegally present in Ireland. Then, on 30.07.2015, after marrying an EU national, Ms Bundhooa applied for a residence card under the EC (Free Movement of Persons) (No 2) Regulations 2006. On 05.01.2016, she was granted temporary permission under those Regulations to stay in Ireland on “stamp 4” conditions. But on 30.04.2016 Ms Bundhooa's residence card application was refused on the basis that the marriage was one of convenience. No review was sought of that decision, so it stands. On 23.05.2016, Ms Bundhooa applied for permission to remain on a “stamp 4” basis, invoking s.4 of the Immigration Act 2004. By decision of 22.09.2016, the Minister refused to deal with that application. Ms Bundhooa seeks, inter alia, an order of certiorari in respect of that refusal.

2 The refusal states, inter alia, that: ‘ Because you did not have permission when the application was received, the question of amending or extending it does not arise. Accordingly, your case will not be dealt with under section 4’. This text involves an inexact reference to s.4(7) of the 2004 Act which provides: ‘ A permission under this section may be renewed or varied [i.e. not “amended or extended”] by the Minister…’. But administrative decisions do not fall to be construed like statute. What the...