Jaimee Middelkamp v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 July 2021
• Neutral Citation: [2021] IEHC 521
• Docket Number: [2020 No. 182 JR]
• Court: High Court

Between

Jaimee Middelkamp

Applicant

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 521

[2020 No. 182 JR]

THE HIGH COURT

Order of certiorari – Visa – Variation – Applicant seeking an order of certiorari – Whether the respondent erred in law and acted unreasonably and/or irrationally and breached the principles of fair procedures and natural and constitutional justice

Facts: The applicant, Ms Middelkamp, applied to the High Court for an order of certiorari in respect of the decision of the respondent, the Minister for Justice and Equality, of 2nd January 2020 to refuse an application made by Ms Middelkamp under s. 4(7) of the Immigration Act 2004 for a variation of the permission (visa) pursuant to which she resided lawfully in Ireland. Ms Middelkamp’s statement of grounds identified the following basis as the legal deficiencies that presented in the Minister’s refusal: “1. In determining the application the Respondent erred in law and acted unreasonably and/or irrationally and breached the principles of fair procedures and natural and constitutional justice in failing or refusing to consider the private and family life rights of the Applicant which derive from Article 8 ECHR and therefore failed to perform his functions in a manner compatible with the State’s obligations under the Convention provisions thus breaching the provisions of s.3 of the European Convention on Human Rights Act 2003. Insofar as the Respondent justifies the failure to consider the said rights on the basis that they are not currently being interfered with the Respondent fell into error in that the said rights were clearly engaged and therefore there was an obligation to consider them. 2. In determining the application the Respondent erred in law and acted unreasonably and/or irrationally and breached the principles of fair procedures and natural and constitutional justice in failing to provide reasons for the decision.”

Held by Barrett J that what the Minister had done in the impugned decision, to borrow from counsel for Ms Middelkamp, was to offer the briefest of reasoning which managed, despite its brevity, to be “so broad as to be meaningless”. Barrett J held that it was not open to the Minister to come to court and seek to add to the reasoning that she had given in her original decision. Barrett J held that although the impugned decision referred to “all rights arising”, it gave no indication as to what rights were considered and how they were weighted. Barrett J held that in the absence of any meaningful reasoning it was not at all clear how none of the “all rights arising”, which presumably included individual rights, could prevail over such vague generalities as “the interest of public policy and the common good in maintaining the integrity of the immigration system”. Notwithstanding that Ms Middelkamp’s extensive (near-200 page) application put the question of Art. 8 ECHR-derived rights (specifically the issue of spousal separation) directly in issue, Barrett J noted that the Minister’s decision made no express mention of same. Barrett J held that the detail of Ms Middelkamp’s application was simply not engaged with in any meaningful sense in the impugned decision. Barrett J held that the Minister’s position of postponing any consideration of Ms Middelkamp’s Art. 8 ECHR-derived rights until the Minister proposes (following any, if any overstay) to deport Ms Middelkamp was not in accordance with law; rather, it was an attempt to apply precisely the two-stage process of consideration of rights to which the Supreme Court took objection in Luximon and Balchand v Minister for Justice and Equality [2018] 2 I.R. 542. Barrett J held that Art. 8 ECHR and, more particularly, the issue of spousal separation was raised, relevant and fell to be considered, even if only to identify why, in the Minister’s opinion, consideration of this issue fell to be deferred.

Barrett J held that the court would grant an order of certiorari quashing the Minister’s decision of 2nd January 2020 and remit the matter to the Minister for fresh consideration. As Ms Middelkamp had succeeded in her application, the court proposed making an order for costs in her favour.

Application granted.

Summary

This is a successful application for an order of certiorari in respect of the Minister's decision of 2nd January 2020 to refuse an application made by Ms Middelkamp under s.4(7) of the Immigration Act 2004 for a variation of the permission (visa) pursuant to which she presently resides lawfully in Ireland. This summary forms part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 22 ^nd July 2021.

I

Background

1 . Ms Middelkamp is a Canadian national. Her husband, Mr Paul, also a Canadian national, is a graduate entrant to the dentistry course in UCC. Mr Paul's studies are costing husband and wife a lot of money. But as a couple they have taken the view that dentistry is what Mr Paul wants to do in life, and they have clearly decided that over the course of their married life Mr Paul's career in dentistry will more than meet the costs that they are currently ‘racking up’ in Ireland. Ms Middelkamp is working as a legal secretary in Cork; however, on her own account her primary focus for now is looking after the couple's everyday/workday needs so that Mr Paul can focus on passing his exams and becoming a dentist. They are like countless couples around the world, pulling together to make the best possible life that they can jointly achieve for themselves. And, good to know, both of them have been enjoying their time in Ireland – or mostly, anyhow, for a problem has unfortunately arisen that has led to these proceedings. That problem is described hereafter.

2 . Mr Paul started his course in the autumn of 2018. It is a four-year course so he is now on the ‘home stretch’ in terms of completing it. Mr Paul has a student visa to be here for the duration of his course. Ms Middelkamp came to Ireland on a different visa. She entered on a two-year visa that issued in August 2018 and which states itself to be non-renewable. So it was due to expire in August 2020. As it happens, the Covid pandemic intervened and Ms Middelkamp's visa has been extended up to September 2021 as part of a general extension, which explains why she has not yet left the State but remains lawfully here (and she does not want to be un-lawfully here). However, the court understands that the visa will not be extended beyond September 2021, with the result that in the next couple of months, unless things change somehow, Ms Middelkamp will have to leave Ireland. And there is the rub: Ms Middelkamp is young, married, in love with her husband, supporting him so that he gets through his studies at UCC, and does not want to go back to Canada while Mr Paul is still here. Not only would such a separation place an inevitable emotional strain on both parties but it will also place a heavy financial strain on them, and they have already indebted themselves to a fairly eye-watering amount to get to Ireland and pay for Mr Paul's studies.

3 . Ms Middelkamp has, of course, known all along that her visa is a two-year visa. So back in December 2019 she made an application under s.4(7) of the Immigration Act 2004 for a variation of her visa (“ permission” is the term employed in s.4(7)), such that following the expiration of the 24-month period of the visa she would have an extended entitlement to be in Ireland (essentially until Mr Paul is done with his studies, at which point the couple will face a decision as to whether they want to return to Canada or try their luck in a jurisdiction other than Canada, with Mr Paul then armed with his valuable degree in dentistry). (Under s.4(7) “ A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefore by the non-national concerned”). Although the Minister contended that what is at issue in these proceedings is not a ‘point of exit’ decision, in practical terms it was: the application made by Ms Middelkamp was that the ‘point of exit’ was rushing fast in upon her and (sensibly) she wanted to deal with it before it arrived.

4 . In passing, there is a hint in the documentation before the court, and the point was also touched upon by the Minister in argument at the hearing (though it appears nowhere in the impugned decision) that it may be that Ms Middelkamp and Mr Paul might wish to remain in Ireland after Mr Paul gets his dentistry degree. Maybe they will – who knows what the future will bring? – but if the Minister saw something objectionable to present in this possibility then it fell to her to address it in the impugned decision and this she did not do. It is, with respect, an elementary principle of judicial review, though a point that will, regrettably, fall repeatedly to be made in this judgment (and which falls to be made in all too many judgments), that it is a decision that was actually made that falls to be reviewed in judicial review proceedings, not some imaginary decision that the decisionmaker might now like to have made, and not the decision that was made coupled with whatever additional reasons a decisionmaker thinks to cobble together after judicial review proceedings have commenced.

5 . In any event, by letter of 2nd January 2020, the Minister refused Ms Middelkamp's application. The letter is short. The relevant reasoning is shorter, stating:

“ Having considered the full facts of your case, all your personal circumstances and representations provided and all rights arising, it is concluded that the interest of public policy and the common good in maintaining the integrity of the immigration system outweigh such features of your as might tend to support a decision to vary permission under section 4(7) of the 2004 Act.”

6 . On a practical level, the decision seems rather...