Delour Hussein v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh,Mr. Justice McDermott
• Judgment Date: 18 March 2014
• Neutral Citation: [2014] IEHC 130,[2014] IEHC 106
• Court: High Court
• Date: 18 March 2014

[2014] IEHC 106

THE HIGH COURT

[No. 250 J.R./2012]

Hussein v Min for Justice

BETWEEN

DELOUR HUSSEIN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

IMMIGRATION ACT 2004 S4

BODE & OLA-BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

SALEEM v MIN FOR JUSTICE 2011 2 IR 386 2011/46/12857 2011 IEHC 223

IMMIGRATION ACT 2004 S4(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 2004 S16(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

IMMIGRATION ACT 2004 S5

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

IMMIGRATION ACT 2004 S4(2)

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION ACT 2004 S4(6)

IMMIGRATION ACT 2004 S4(7)

SALEEM v MIN FOR JUSTICE 2011 2 IR 386 2011/46/12857 2011 IEHC 223

Practice and procedure – certification of points of law – exceptional public importance – Immigration and asylum – long term residence – Immigration Act 2004.

Facts: A previous ruling of the High Court granted an order of certiorari quashing the respondent"s refusal to allow the applicant to remain in the country under a long term residence scheme on the grounds that he had been convicted of an offence and was therefore not of good character. The Court had held that the respondent had fettered his discretion by adopting a fixed policy and that the decision was unreasonable given that the applicant was precluded from obtaining long term residency for committing a minor offence which had only attracted a fine. Furthermore, s. 4(3) of the Immigration Act only permitted the Minister to refuse residency or continued residence to those persons served with a more severe penalty. The respondent now sought to have points of law certified on the basis that they were of exceptional public importance.

Held by Dermott J, that he was prepared to certify the following points of law as they were of exceptional public importance. 1. Does the respondent have his own executive power to grant an applicant the right to reside in the state which is independent of the Immigration Act 2004? 2. Does the Immigration Act 2004 govern the operation of the respondent"s long term residence scheme? 3. If the answer to question 2 is in the affirmative, does the respondent have a discretion to decide the basis on which applicants can avail of the scheme? 4. Does s. 4(3) of the Immigration Act 2004 apply to decisions of the respondent refusing to vary or renew permission to be in the state in accordance with s. 4(7)? 5. Can a refusal to grant permission to reside under the long term residence scheme be based on the respondent"s own powers as opposed to solely under the conditions set out under s. 4(3) of the Immigration Act 2004?

Dermott J was prepared to certify these questions as the issues they addressed not only concerned the exercise of the executive power of the State, they also transcended the facts of this case and would affect the manner in which the respondent drafted and implemented his immigration policies and schemes in the future.

1 JUDGMENT of Mr. Justice McDermott delivered the 7th day of March, 2014

2 1. On 24 ^th January, 2014, the court delivered its judgment on this application granting an order of certiorari quashing the refusal of residency permission to the applicant for a period of five years pursuant to a "long term residence scheme" operated by the respondent. This enabled non-European Union nationals who had been working in Ireland on foot of work permits for more than sixty months to apply and be considered for more a general form of permission to remain in the state.

3 2. The applicant had been working as a chef in Ireland since 6 ^th February, 2005, under work permits which were renewed annually in accordance with a more restrictive visa scheme operated by the respondent pursuant to the provisions of s. 4 of the Immigration Act 2004. He was refused permission to remain under the long term residency scheme because he had been convicted of the offence of driving without insurance at Sligo District Court on 2 ^nd August, 2011. He paid the fine but was informed by the Minister that the application was refused because he had come to adverse Garda attention.

4 3. The nature and extent of the "long term residency scheme" operated by the respondent is described and set out in the judgment at paras. 8 and 9. In order to be eligible an applicant must, inter alia, "be of good character".

5 4. The applicant continued to be the beneficiary of work permits and the court was informed on the hearing of this application that he had applied for a certificate of naturalisation, which has now been deferred for a period of eighteen months until 9 ^th April, 2014, in order that the Minister might be satisfied that the applicant continues "to be of good character".

6 5. The court granted an order of certiorari on the following grounds:-

7 a "(b) the respondent has unlawfully fettered his discretion and that of his servants or agents by adopting an unreasonable and fixed policy to refuse long term permission to reside on stamp 4 conditions to eligible persons on the basis of convictions for relatively minor offences.

8 (c) the respondent';s decisions (the refusal and the review decision upholding the refusal) were unreasonable and disproportionate given the nature of the offence, the circumstances on which the offence occurred and the punishment administered by the District Court (a euro;300 fine). The outcome of the application was of considerable significance to the applicant as stamp 4 permission for five years would permit him to change jobs and provide some certainty in relation to his immigration/residency status into the future"

9 6. In the course of the judgment, the court distinguished the "long term residency scheme" from the type of scheme administered by the respondent, known as the IBC05 scheme, which had been considered by the Supreme Court in Bode v. Minister for Justice, Equality and Law Reform [2006] IESC 341. Under that scheme the Minister had introduced an administrative arrangement for the consideration of applications for permission to remain in the state based on the parentage of Irish born children, born before 1 ^st January, 2005, after a constitutional amendment which changed the law excluding from automatic Irish nationality and citizenship, a child born to parents neither of whom was entitled to Irish citizenship at the time of the child's birth. The applications were accepted under a scheme limited in time and pursuant to a general policy of granting applications provided certain conditions were fulfilled. The Supreme Court determined that the scheme was operated pursuant to the inherent power of the state to establish an ex gratia scheme of that nature. It had been introduced by the Minister following government approval in the light of unique circumstances prevailing in Ireland in 2005. The scheme was an addition to the specific statutory procedures under the 2004 Act and was regarded as "a sui generis scheme". The Supreme Court determined that the IBC05 scheme had been introduced by the Minister exercising the executive power of the state following a government decision to address a unique situation which had occurred in relation to a significant number of foreign nationals within the state. Any person who did not succeed in an application under the scheme remained in the same situation as they had been prior to the application. The court, therefore, concluded that the contention of the applicants in Bode that the constitutional and Convention rights of the applicants were in issue in the IBC05 scheme was misconceived because it did not purport to address, nor did it address, constitutional or Convention rights, none of which were interfered with by a refusal.

10 7. The court, in this case, was satisfied that the IBC05 scheme had a number of similar aspects to the "long term residency scheme", but there were a number of differences. The scheme was not sui generis. It applied to a much broader category of persons and was not introduced to address particular unfairness to persons affected by a unique event. It was not closed to applicants after a period of time and operated as part of a general scheme available to immigrant workers. It was also a scheme that required a consideration of the merits of certain aspects of the case, such as whether the applicant was of "good character".

11 8. Under s. 4 of the Immigration Act 2004, an immigration official may on behalf of the Minister give to a non-national "a document or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the state (referred to in this Act as "a permission")". That permission is clearly one "to land" or to "be in the state". Cooke J. in Saleem v. Minister for Justice, Equality and Law Reform [2011] IEHC 223 determined that the administrative scheme amounted in practice to a statement as to the circumstances and conditions in which the Minister is prepared to entertain and consider applications for the grant for permission to remain on the basis of a "stamp 4" endorsement which will be valid for a period of five years, and that the grant of permission was a matter for the discretion of the respondent to be exercised under section 4.

12 9. This Court concluded that the Minister erred in law by refusing the applicant permission to remain under the scheme because he was not of "good character" by reason of the conviction for having no insurance because s. 4(3) only allowed the Minister to refuse the permission to be or to remain in the state on the grounds that he had been convicted of an offence that may be punished by imprisonment for a period of one year or by a more severe penalty.

13 10. The applicant has appealed the order and judgment of the court to...