A.K.R v Minister for justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IEHC 325
• Court: High Court
• Docket Number: [2020/117JR]

Between

A.K.R.

Applicant

and

Minister for Justice & Equality

Respondent

[2022] IEHC 325

[2020/117JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Bolger delivered on the 31st day of May, 2022

1 . This case raises issues on the scope and application of a scheme for certain undocumented migrants. For the reasons set out below I am refusing this application.

2 . The applicant seeks certiorari quashing the respondent's decision to refuse the applicant's application made under the ‘Special Scheme for non-EEA nationals who held a student permission in the State during the period 1 January 2005 to 31 December 2010’ which was notified by letter dated 16 September 2019 and affirmed on review by letter dated 14 November 2019.

Background

3 . The applicant, a citizen of South Africa, lawfully entered the State in 2009 on a student visa which expired on 7 February 2012. Thereafter the applicant remained in the State without permission, residing with and supported by his cousin who is an Irish citizen. The applicant's only contact with the State authorities during this time was an application he made in 2017 for a Public Services card which he believed might enable him to get some form of recognised identity in the State. That application was successful.

4 . In October 2018 the respondent established a special scheme for non-EEA nationals who held a student permission in the State during the period of 1 January 2005 to 31 December 2010 (hereinafter referred to as ‘the Scheme’). Qualified persons were permitted to apply under this scheme until 20 January 2019. The applicant believed he qualified for the Scheme and duly applied on 1 January 2018. The respondent sought documentary evidence from him pursuant to para. 3.5 of the Scheme which required the applicant to establish that he was “living in the State continuously since your arrival in the State and can provide supporting documentary evidence of your continued presence in the State at least throughout, 2016, 2017 and 2018 to date”. The applicant furnished the following documentation:

• (i) Forms confirming the loss of his South African passport and his application for a new passport;

• (ii) Photographs dated from 6 February 2012 to 6 December 2019 which he submitted were taken in the State;

• (iii) Letters from persons resident in the State confirming that they had known and dealt with the applicant in the State from 2012 to date;

• (iv) An affidavit from his cousin who is an Irish citizen residing in Ireland, confirming that the applicant had resided with and been supported by her since his arrival in the State since 2009;

• (v) A letter from the applicant dated 26 May 2019 explaining that he could not produce payslips from 2014 to 2018 because he had not worked since the expiry of his student visa in 2012;

• (vi) A letter from the applicant dated 6 September 2019 explaining why he had no bank account or household bills since 2012, and in which he stated he was “hiding in constant fear and therefore did not engage in anything that would expose me to the authority”.

• (vii) A copy of his Public Services card.

5 . By a decision dated 16 September 2019 the applicant's application was refused by the respondent, citing para. 3.5 of the Scheme, referred to at para. 2 above.

6 . The applicant sought a review of that decision by way of a form completed on 14 October 2019, to which he attached copies of educational records up to 2011, banking documentation up to 2013 and personal references to date as evidence of his being in the State from 2009 to date. He stated that he had not left the State since his visa expired in 2012.

7 . By decision dated 14 November 2020 the respondent confirmed her consideration of all the information and documentation contained in the applicant's application, his immigration records and the additional material he provided in his application for a review. The respondent upheld the decision to refuse the applicant's permission under the Scheme as correct “in that you did not meet the relevant Scheme eligibility criteria in 3.5 that you ‘are living in the State continuously since your arrival in the State and can provide supporting documentary evidence of your continued presence in the State…’”.

The applicant's case

8 . The applicant seeks to quash the decision of 14 November 2019 on the basis that the documentation he furnished was not properly considered by the respondent and that the respondent's requirement that he submit official documentation was irrational, arbitrary and/or autocratic. The applicant argues that had the respondent interpreted the Scheme properly he should have been found to have come within it and that the court should not be restrictive in interpreting the Scheme as, he contended, it was a remedial scheme designed, as his counsel described, for persons who are existing “in the shadows”. The applicant submitted that the respondent had acted irrationally in disregarding the documentary evidence that he had furnished and in requiring the applicant to be able to furnish employment and tax records even though he was in the State unlawfully since the expiration of his student visa in 2012.

The respondent's case

9 . The respondent challenges the applicant's interpretation of the purpose and requirement of the Scheme as one for persons “living in the shadows”. Rather the respondent contended that the Scheme was for persons living openly in the State and engaging with state authorities, including the immigration authority. The respondent emphasises the administrative nature of the Scheme, which does not engage any of the applicant's rights (whether pursuant to the Constitution or the Convention for European Rights) and which therefore leaves the respondent free to determine the criterion she wishes to impose. Crucially for this applicant, the respondent submits that this includes the furnishing of particular types of documents. The respondent describes the process of the application (at para. 6 of the affidavit of Eileen O'Reilly, the civil servant who made the decision being challenged) as involving “a hierarchy of issues considered in order to determine whether or not an application met with the conditions of the Scheme”. The first matter that was looked at was whether the applicant had supplied the relevant documentation required by the Scheme. This applicant did not, and that was the reason his application was deemed ineligible without further consideration being given to other terms of the Scheme.

The Scheme

10 . There is disagreement between the applicant and the respondent as to the purpose and full requirements of the Scheme. The parties were in agreement that the Scheme grew out of the decision of the Supreme Court in Luximon v. Minister for Justice and Balchand v. Minister for Justice [2018] 2 IR 542. The respondent sought to rely on the fact that both applicants in that case had lived and worked openly in the State within family units and became ‘timed out’ students in 2011, when the students' visa scheme was changed.

11 . I do not consider that those decisions to be relevant in determining the scope and application of this Scheme. It is the terms of the Scheme that determine its scope rather than the legal challenge that motivated the respondent to introduce the Scheme.

12 . It is common case that the applicant did not have any financial documentation from 2012 of the type that the respondent claims was required (identified as including bank statements, employment documentation, tax documentation,...