Hussein v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 10 November 2015
• Neutral Citation: [2015] IESC 104
• Docket Number: [S.C. No. 78 of 2014],[Appeal No: 78/14]
• Court: Supreme Court
• Date: 10 November 2015

[2015] IESC 104

THE SUPREME COURT

Hardiman J.

[Appeal No: 78/14]

Denham C.J.

Hardiman J.

O'Donnell J.

McKechnie J.

Laffoy J.

Between/

DELOUR HUSSEIN

Applicant/Respondent

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Respondent/Appellant

Immigration – Residency application – Points of law – Respondent seeking long term residence with exemption from work permit conditions – Whether appellant unlawfully fettered her discretion

Facts: The applicant/respondent, Mr Hussein, applied for long term residence with exemption from work permit conditions. The application was rejected by the respondent/appellant, the Minister for Justice, Equality and Law Reform, on the 3rd November, 2011. Mr Hussein sought an order of certiorari quashing both that decision and a reviewed decision of the 23rd November, 2011, upholding the first. Mr Hussein argued that the permission could only be granted pursuant to the statutory discretion provided to the Minister by s. 4 of the Immigration Act 2004. Mr Hussein claimed that the Minister erred in failing to determine the application by reference to Mr Hussein’s particular circumstances. It was also claimed that the Minister had unlawfully fettered her discretion and that of her servants or agents by adopting an unreasonable and fixed policy to refuse long term permission to reside to eligible persons on the basis of convictions for relatively minor offences, in this case the Road Traffic Offence of driving without insurance. The application was successful in Mr Hussein’s High Court proceedings. The Minister appealed against the decision of the High Court. By order perfected the 7th March, 2014 the trial judge certified that the judgment involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The points of law certified were: 1) Whether the Minister retains an executive power notwithstanding the provisions of ss. 4 and 5 of the 2004 Act, to operate schemes for the grant of permission to be or remain in the State which are not subject to the said provisions; 2) Whether the terms of the Long Term Residency Scheme published by the Minister and by virtue of which permission to remain in the State for a period of five years may be granted by the Minister, is governed by s. 4; 3) Whether if s. 4 applies to such schemes, the Minister has a discretion as to the terms on which a non-national may qualify for the benefit of such a scheme; 4) Whether the provisions of s.4(3) apply to a refusal to vary or renew a permission to be and remain in the State pursuant to s. 4(7); 5) Whether the Minister has the power to refuse applications for Long Term Residency for reasons other than those set out in s. 4(3).

Held by Hardiman J that Mr Hussain’s contention that the Minister had fettered her discretion to deal with an application under s. 4(7) was simply unfounded on the evidence; there is no evidence that the Minister regarded Mr Hussain’s offence as a permanent bar from Stamp four status. Hardiman J noted that Mr Hussain has since become an Irish citizen, thereby demonstrating that the authorities had taken into account the further period he had spent in the State without coming to unfavourable notice. Accordingly, Hardiman J held that there was no evidence of an inflexible policy towards any application made by Mr Hussain, by reason of his conviction for driving without insurance or for any other reason.

Hardiman J held that the Court would reverse the decision of the High Court judge and refuse Mr Hussain’s application for relief by way of judicial review of the decisions of the 3rd and 23rd of November, 2011.

Appeal allowed.

Judgment of Mr. Justice Hardiman delivered the 10 ^th day of November, 2015.

1 In these judicial review proceedings the applicant (Mr. Hussein) sought an order of certiorari quashing the respondent's (‘the Minister's’) decision of 3 ^rd November, 2011, and also a reviewed decision of the 23 ^rd November, 2011, upholding the first decision. There are other claims to ancillary reliefs, which are not immediately relevant.

2 The decision in question was a decision to reject Mr. Hussein's application for ‘long term residence with exemption from work permit conditions’. This is sometimes referred to as ‘Stamp 4 permission’. It was argued by the applicant that the permission could only be granted pursuant to the statutory discretion provided to the Minister by s.4 of the relevant statute, the Immigration Act, 2004. Mr. Hussein claimed that the Minister erred in failing to determine the application by reference to Mr. Hussein's particular circumstances. It was also claimed that the Minister had unlawfully fettered her discretion and that of her servants or agents by adopting an unreasonable and fixed policy to refuse long term permission to reside to eligible persons on the basis of convictions for relatively minor offences, here the Road Traffic Offence of driving without insurance.

3 The application was successful in his High Court proceedings. The Minister appeals against the decision of the High Court. On the hearing of this appeal we were told that she was particularly concerned about what the learned High Court judge held at para. 21 of the judgment.

4 In that paragraph, the learned trial judge referred to what had been said by Cooke J. in Saleem v. Minister for Justice [2011] 2 I.R. 386 to the effect that the scheme for granting the relevant form of residency was operated under s.4 of the Immigration Act, 2004.

Declarations had been sought in Saleem to the effect that the scheme for long term residency permission was an extra statutory scheme. These declarations, were held (see para. 11 of the judgment) to have become irrelevant by reason of a clarification of the Minister's stance to the effect that the Minister had, in fact operated a statutory scheme in Saleem. Having regard to what was said on behalf of the Minister at the hearing of the present appeal it will be seen that the facts of this case, too, left no scope to argue whether there was a residual non-statutory discretion available to the Minister, presumably based on the inherent executive power of the State.

The learned trial judge referred to a letter of the 5 ^th October, 2011, issued in a different case, for the proposition that there was a policy in the relevant section of the Department ‘to refuse applications from those convicted of offences such as driving without insurance because it was considered to be a serious offence’. The learned trial judge continued:

‘In that case because the applicant had been convicted of driving without insurance, a decision was made not to grant long term residency. In this case the applicant failed because he committed the same offence and was therefore deemed not to be of good character. It was made clear that the applicant was refused as a result of his criminal conviction alone. That refusal is inconsistent with the spirit terms and intention of s.4(3) [of the 2004] Act. The good character condition of the residency scheme, insofar as it permits a refusal because of a conviction for a s.56 offence, is at variance with the policy of the Oireachtas expressed under the Act. The respondent has offered no evidence to explain the letter or to refute the existence of such a policy. I am satisfied that the unexplained letter, together with the decision in this case, indicate that such a policy exists. I am also satisfied that the respondent has unlawfully and unreasonably restricted his discretion by adopting this policy and moreover, in refusing the application on the sole ground of this conviction, was acting contrary to the intention of the Oireachtas as set out in s.4 (3) which precisely delineates the nature of a criminal conviction which may result in a refusal. I have no doubt that the Minister is entitled to construct a conditional scheme for particular classes of applicants as he had done in respect of the various Stamp 0, Stamp 1, Stamp 2, 3 and 4 visas to be and remain in the State. However in doing so the respondent must act within the framework of the statutory discretion conferred by s.4.’

It was common case on the hearing of this appeal that the learned trial judge in this case had not been invited to quash the Minister's decision on that ground.

5 Subsequent to the High Court decision, but before the coming on of the appeal, Mr. Hussein's proceedings became moot because he was granted a Certificate of Naturalisation and became an Irish citizen, in September 2014. Accordingly, since Mr. Hussein had acquired citizenship he obviously had no interest in pursuing an application for the lesser form of immigration status known as ‘Long Term Residency’.

6 Nevertheless, this Court by order of the 12 ^th January, 2015 directed that the appeal proceed ‘notwithstanding its mootness’. This was done on the Minister's undertaking to pay Mr. Hussein's costs of the appeal.

7 By order perfected the 7 ^th March, 2014 the learned trial judge certified that the judgment involved points of law of exceptional public...