Danibye Luximon v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 March 2015
• Neutral Citation: [2015] IEHC 227
• Court: High Court
• Date: 20 March 2015

[2015] IEHC 227

THE HIGH COURT

[No. 67 J.R./2013]

Luximon & Choolun (A Minor) v Min for Justice

JUDICIAL REVIEW

No Redaction Needed

BETWEEN/

DANIBYE LUXIMON

AND

PRASHINA CHOOLUN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND DANIBYE LUXIMON)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Immigration - s. 4(7) of the Immigration Act 2004 - Article 40.3 and Article 41 of the Constitution - Article 8 of the European Convention on Human Rights – Permission to remain

Facts:

The applicant applied for an order of certiorari to quash the respondent”s decision refusing the applicant permission to remain in the State pursuant to s. 4(7) of the Immigration Act 2004 (‘the 2004 Act’). The applicant also applied for an order of mandamus to compel the respondent to reconsider the first named applicant”s application for permission to remain in the State pursuant to s. 4(7) of the 2004 Act. The applicant submitted that the Minister did not give consideration to the matters set out in s. 4(10); or his personal family rights under Articles 40.3 and 41 of the Constitution; or his Article 8 rights under the European Convention on Human Rights.

The applicants were a Mother and daughter from Mauritius. The Irish Naturalisation and Immigration Service had given the first named applicant extended permission to reside in Ireland for the purpose of applying for a work permit. However, the first applicant”s application for a work permit was refused because her permission to reside in the State had expired. The applicants” solicitors applied to the respondent to change the status/permission to reside in the State on stamp 4 conditions pursuant to s. 4(7) of the 2004 Act. This application was also refused. This decision did not refer to the applicant”s Article 8 rights or to the second applicant. The applicant issued proceedings challenging the refusal for a change of status/permission to remain in the state pursuant to s. 4(7).

The applicants challenged the decision based on three grounds: i) the Minister was obligated to consider Constitutional and Convention rights; ii) the Minister breached fair procedures and constitutional justice by operating under an unpublished policy and iii) the Minister made an error of fact. The respondent submitted that the Minister was not obliged to consider matters set out in s. 4(10) when determining a s. 4(7) application or an applicant”s constitutional or convention rights when exercising her discretion under s. 4(7). The respondent stated that she only had to consider to those rights in relation to deportation pursuant to s. 3 of the Immigration Act 1999.

Held by Barr J:

The central question for the court was whether the Minister was obliged to consider an applicant”s constitutional and/or convention rights in relation to a s. 4(7) application. The court was satisfied that the Minister was obliged to consider the constitutional and convention rights of the applicant when considering an application pursuant to s. 4(7). The court also determined that the Minister had discretion to decide the appropriate weight to attach to those rights subject to the principle of proportionality. The court was of the view that the Minister failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in failing to publish the criteria that she must take into account when determining an application from a timed out non-EEA student for a change of permission to a stamp 4 permission pursuant to s. 4(7) of the Immigration Act 2004. The court rejected the applicants” submission that an erroneous reference to a Chinese re-entry stamp rendered the Minister”s decision unlawful. The court determined this was a typographical error as opposed to a material error of fact. In conclusion, the court made an order of certiorari quashing the Minister”s decision and remitting the matter for fresh consideration. The court felt it was therefore unnecessary to make an order of mandamus.

1 JUDGMENT of Mr. Justice Barr delivered on the 20th day of March, 2015

2 1. This is an application for, inter alia, an order of certiorari quashing the decision of the respondent dated 5 ^th November, 2012, refusing the first named applicant's application for a change of status/permission to remain in the State pursuant to s. 4(7) of the Immigration Act 2004; and for an order of mandamus compelling the respondent to reconsider the first named applicant's application for a change of status/permission to remain in the State pursuant to s. 4(7) of the Immigration Act 2004.

3 2. The applicant submits that the principal issue raised in these proceedings concerns the nature of the considerations that the Minister, or an immigration officer, is required to take into account in deciding whether to grant permission to land or to remain in the State. More specifically, the applicant states that the dispute between the parties centres on whether the Minister, or an immigration officer, is required to have regard to (i) the matters set out in s. 4(10); and (ii) an individual's personal and family rights under Article 40.3 and Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights.

Background

4 3. The applicants are citizens of Mauritius and are mother and daughter. They have resided in the State for over seven years. The first named applicant arrived in the State in July 2006 for the purposes of pursuing a course of study; she was, accordingly, registered on stamp 2 conditions.

5 4. Under stamp 2 conditions, a person is permitted to remain in the State to pursue a course of studies on condition that the holder does not engage in any business or profession other than casual employment (defined as 20 hours per week during school term and up to 40 hours per week during school holidays) and does not remain later than a specified date. In addition, the person has no recourse to public funds unless otherwise provided.

6 5. She was joined in the State by her two minor daughters, including the second named applicant herein, who remains a minor and is in secondary school. The first named applicant has been continuously employed since her arrival in the State in the role of a dental practice co-ordinator.

7 6. The first named applicant's permission to reside in the State on student conditions expired in June 2012. New immigration rules in respect of full time non- EEA students were introduced on 1 ^st January, 2011, which stipulated that non-EEA students could only reside in Ireland for a maximum period of seven years. Transitional arrangements were put in place by the respondent to allow students who wished to remain in the State beyond that seven-year maximum period to apply for a work permit to enable them to remain in the State. The first named applicant was afforded a brief extension of her permission to reside in the State by the Irish Naturalisation and Immigration Service to allow her to apply for a work permit. With the support of her employer, Dr Daragh Fagan, the first applicant submitted an application for a work permit, but the application was refused in or around August 2012 on the ground that her permission to reside in the State had expired.

8 7. In light of the fact that the applicant's work permit application had been refused due to the lack of permission to reside in the State, on 30 ^th October, 2012, the applicants' solicitors made an application to the respondent for change of status/permission to reside in the State on stamp 4 conditions, pursuant to s. 4(7) of the Immigration Act 2004. A person on a stamp 4 permission is permitted to remain in Ireland until a specified date, and he or she may work without a work permit.

9 8. In their letter dated 30 ^th October, 2012, and addressed to the General Immigration Division, INIS, 13-14 Burgh Quay, Dublin, the applicant enclosed extensive proofs in support of her application including: evidence of employment and the ongoing support of her employer; evidence of her self-sufficiency in terms of medical insurance and the fact that she was not reliant on social welfare; and letters from her daughter's secondary school. Because of its centrality to the present proceedings, it is necessary to set out this letter in full:

10 Re: Our client - Ms. Danibye Luximon, National of Mauritius

11 Application for permission to remain pursuant to s. 4(7) Immigration Act, 2004

12 Dear Sirs,

13 We refer to the above and confirm that we have been instructed by Ms. Luximon to apply on her behalf for a change in her immigration status so as to have her permission to remain regularised on 'stamp 4' conditions. Please see enclosed letter of consent and authority by way of confirmation, along with the following supporting documentation:

14 1. Letter of consent and authority dated 22 ^nd October, 2012;

15 2. Copy of Bio Data page of Daniybe Luximon's Mauritian Passport;

16 3. Copy Dental Practice Co-Ordination Certificate from Mauritius Institute of Health dated 23 ^rd January, 1986;

17 4. Letter from Darragh Fagan Dental Surgery to INIS dated 25 ^th September, 2012. Re: Green Card application for Ms. Luximon.

18 5. New Employment Permit Application from Darragh Fagan Dental Surgery for Ms. Luximon dated 24 ^th September, 2012;

19 6. Letter from Darragh Fagan Dental Surgery to Ms. Luximon dated 8 ^th September 2012. Re: Job Offer;

20 7. Letter from Darragh Fagan Dental Surgery to Ms. Luximon dated 24 ^th February 2012. Re: Job Offer.

21 8. Letter from Darragh Fagan Dental Surgery to INIS dated 19 ^th June 2012. Re: Green Card Extension.

22 9. Copy Pay Slips from Darragh Fagan Dental Surgery for Ms. Luximon - March 2012 to August 2012;

23 10. Copy Tax Clearance Certificate for Darragh Fagan dated 10 ^th August, 2012 ;

24 11....