Hui Zhu Chen v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice Murray,Ms. Justice Power
Judgment Date30 March 2021
Neutral Citation[2021] IECA 99
Docket NumberCourt of Appeal No.: 2019/401
Date30 March 2021
CourtCourt of Appeal (Ireland)

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000

Between:
Hui Zhu Chen
Applicant/Appellant
and
The Minister for Justice and Equality
Respondent

and

The Irish Human Rights and Equality Commission and the Attorney General
Notice Parties

[2021] IECA 99

Faherty J.

Power J.

Murray J.

Court of Appeal No.: 2019/401

High Court Record No.: 2014/735 JR

THE COURT OF APPEAL

Immigration – Visas – Long-term residence – Applicant seeking to stay in Ireland on a long-term basis – Whether through s. 4(7) of the Immigration Act 2004 the Oireachtas ended the understanding of short-term visas as facilitating brief visits to Ireland and transformed such visas into a first step (at a visitor’s election) towards long-term residence

Facts: The High Court (Humphreys J), on 9 October 2017, granted the applicant, Ms Chen, leave to apply by way of judicial review for orders of certiorari quashing the decision of the respondent, the Minister for Justice and Equality, communicated to the applicant by letter dated 11 November 2014 and an order remitting the applicant’s application to the respondent for consideration and determination in accordance with law. Barrett J delivered his judgment on 13 May 2019 ([2019] IEHC 310). The applicant applied to Barrett J for a certificate of leave to appeal. The respondent did not dispute the applicant’s application insofar as it was confined to whether the High Court erred in concluding that the respondent had no power in law under s. 4(7) of the Immigration Act 2004 to vary the stamp ‘C’ visitor permission to another form of immigration permission but instead sought a re-visiting of the judgment on the basis that this argument had not been advanced before the Court. The High Court refused the respondent’s application, and accordingly certified a single question of law of exceptional public importance pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000: “Did the learned judge err in concluding that the Minister had no power under s.4(7) of the Immigration Act, 2004 (as amended) to vary the stamp C visa to another form of permission type?’

Held by Power and Murray JJ that they would answer the certified question of law as posed by the High Court in the affirmative. They found that the judge erred in concluding that the Minister had no power under s. 4(7) of the 2004 Act to vary the stamp ‘C’ visa to another form of permission type. In view of that finding, they allowed the appeal of both parties on this point and vacated the order of the High Court. On the substantive point which was not decided by the High Court, they found that, on the facts of this appeal, the Minister was entitled to apply s. 4(7) of the 2004 Act in the way that he did. They held that there was no unlawful failure on his part to consider the applicant’s asserted rights. They held that he was entitled to reject the applicant’s request to vary her visitor’s visa and to require that any application for long term residence be made through the appropriate immigration procedures. They held that, in coming to his decision under s. 4(7) of the 2004 Act, and notwithstanding that he did, in fact, consider the applicant’s individual circumstances, the Minister was not obliged to conduct an assessment of the applicant’s asserted rights under Article 8 of the European Convention on Human Rights at that stage. They were further satisfied that the Minister was entitled to find that the applicant’s use of the visitors’ visa process to circumvent the requisite procedures required to be followed by those seeking a long-stay residence permit, constituted an unacceptable abuse of the visa system. They held that this was all the more so in circumstances where she had furnished an undertaking that she would leave the State upon the expiry of her visitor’s visa.

Power and Murray JJ held that, provisionally, they were of the view that because the respondent had succeeded on the substantive issue, he was entitled to an order for costs against the applicant in respect of this appeal and in respect of the hearing before the High Court.

Appeal allowed.

JUDGMENT of Ms. Justice Power and Mr. Justice Murray delivered on the 30 th day of March 2021

Facts
1

. The applicant, a citizen of the People's Republic of China, arrived in the State in November 2013 on foot of a visitor's visa. The visa allowed her to remain in the jurisdiction for ninety days. In order to obtain it she had to (and did) give an undertaking to return to China at the expiry of that period. On the ninetieth day, she submitted an application to the respondent pursuant to s. 4(7) of the Immigration Act 2004 to remain in Ireland as a resident. She relied in that regard on asserted rights under Article 8 of the European Convention on Human Rights (‘the Convention’), saying that the relationship between herself, her son, his partner, their child and a child of the partner was such as to require the respondent to undertake an assessment of her family rights in connection with her application. She alleges that she was entitled to require such an assessment and to remain in the State while it was conducted. The issue in this case is whether those contentions were well placed and, if so, whether the respondent failed to properly conduct such an assessment.

2

. The applicant is a widow, her husband having passed away in 2007. Hui Zheng is her son, his partner is Lili Wang, their daughter is Yan Tong Zheng and Lili Wang's daughter is Belinda Wang. The chronology relevant to the proceedings is as follows:

  • (i) Belinda Wang is a Hungarian national and was born on July 5 2009. Yan Tong was born on August 25 2012 in Ireland.

  • (ii) On September 11 2013 Hui Zheng was granted permission to remain in the State on a Stamp 4 basis on account of his parentage of an Irish child. A similar permission issued to Lili Wang on September 20 2013. This was issued ‘ as an exceptional measure’ and having regard to all the circumstances particular to her case.

  • (iii) In late September 2013 the applicant applied for a visa in China to visit the State. It is common case that as a condition of that visa the applicant was required to undertake to leave the jurisdiction after ninety days, and that she gave such an undertaking.

  • (iv) On November 14 2013 the applicant arrived in the State, and was granted permission to land and to be in the State until February 13 2014. Upon arrival in the State the applicant resided in Dublin with the family of Hui Zheng, Lili Wang, Belinda Wang and Yan Tong Zheng.

  • (v) At some point prior to November 26 2013 the applicant was added to the health insurance policy issued to Hui Zheng and his family. The policy had a duration of one year.

  • (vi) On February 13 2014 the applicant, through her solicitor, applied to the respondent to vary the permission granted to her when she landed in the State so that she could remain in the jurisdiction as a person of independent means.

3

. The applicant does not state when she formed the intention to seek to remain in the State beyond the date undertaken when her visa issued. Her affidavit gives the impression that her decision to do this was made at some point into her visit: she avers that in ‘ the period after my arrival in the State we … discussed my future and decided to explore whether it would be possible for me to remain in the State and to continue living with them and their children as a family’.

The impugned decision
4

. The letter to the respondent from the applicant's solicitors of February 13 2014 sought permission to reside on what were described in her solicitor's letter as ‘Stamp 3 conditions’. The letter recorded that since her arrival in Ireland the ‘ natural love and affection which all members of” her son's family had for each other ‘has grown and deepened and together they now form a close, loving, stable and durable family unit’. The letter recorded the wish of all members of the family that the applicant be granted permission to remain in the State on Stamp 3 conditions so that they may continue to live together. The letter referred to Hui Zheng and Lili Wang as being in full time permanent employment, to the applicant owning two apartments in China and her intention, if granted permission to remain in the State, to let both apartments. It said that her son and Lili Wang hoped to purchase their own home and that if the applicant was granted permission to remain in the State it was her and her family's intention that the rental income from her properties would be used to help repay the mortgage. The correspondence recorded that she had ‘substantial savings’ in China and that these would be applied towards a deposit for the purchase of a family home. It said that the applicant had cared for both children, that they accordingly had ‘the advantage of the care and society of a grandparent as they grew up’.

5

. The letter (which noted that the children of Hui Zheng and Lili Wang were both citizens of the European Union) stated:-

“In assessing this application we submit that the Minister must have regard to the State's obligations, by virtue of the provisions of both Article 40 and 41 of the Constitution and Article 8 of the European Convention on Human Rights, to protect and vindicate the personal, family and private lives of our client and the other members of the family unit. In our submissions, in the light of the guarantee contained in these provisions, it is entirely appropriate for the Minister to grant our client's application.”

6

. This application was determined by the Minister, his decision being communicated to the applicant on 30 June 2014. The letter sent by the respondent to the applicant on that date recorded that following consideration of the individual circumstances in the case including all of the matters averred to in the application the position of the applicant did not warrant an...

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4 cases
  • Jaimee v Minister for Justice and Equality & IHREC
    • Ireland
    • Supreme Court
    • 1 February 2023
    ...they can demonstrate additional elements of dependence other than normal emotional ties”: see Chen v. Minister for Justice and Equality [2021] IECA 99 at [61] of the joint judgment of Power and Murray 38 . For good measure I would also draw attention to the decision of this Court in Luximon......
  • Moeen Akram v The Minister for Justice and Equality and The Commissioner of an Gakda Siochána
    • Ireland
    • Court of Appeal (Ireland)
    • 12 May 2022
    ...in respect of other matters which were determined against him or her in the High Court (See Chen v. Minister for Justice and Equality [2021] IECA 99). A separate issue arises as to the extent of the grounds upon which leave to seek judicial review was granted and I will deal with that as it......
  • Jaimee Middelkamp v The Minister for Justice and Equality (No. 2)
    • Ireland
    • High Court
    • 30 November 2021
    ...arise from the principal judgment in) the case. Barrett J held that it was clear from case-law (Chen v Minister for Justice and Equality [2021] IECA 99) that the judgment of the Supreme Court in Luximon and Balchand does not apply to short-term visitors to Ireland. Barrett J held that the q......
  • Jaimee Middelkamp v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 22 July 2021
    ...deferred. 28 . In passing, the court does not see that the decision of the Court of Appeal in Chen v. Minister for Justice and Equality [2021] IECA 99 assists the Minister. That was a settled migrant case and raises different issues to those presenting here. Yet the observations of Power an......

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