Luximon and Another v The Minister for Justice, Equality & Law Reform

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date17 June 2015
Neutral Citation[2015] IEHC 383
CourtHigh Court
Docket NumberRecord No.: 2013 No. 67 J.R.
Date17 June 2015

[2015] IEHC 383

THE HIGH COURT

JUDICIAL REVIEW

Barr J.

Record No.: 2013 No. 67 J.R.

Between/
DANIYBE LUXIMON
PRASHINA CHOOLUN
(A MINOR SUING BY HER MOTHER AND NEXT FRIEND DANIYBE LUXIMON)
Applicants
-and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondent

Asylum, Immigration & Nationality – S. 5 (3) (a) of the Illegal Immigrants Trafficking Act 2000 – European Convention on Human Rights Act, 2003 – S. 4 (7) of the Immigration Act 2004 – Certification for leave to appeal – Issues of exceptional public importance

Facts: The respondent sought the grant of a certificate for leave to the Court of Appeal arising out of the impugned order quashing the decision of the respondent of refusing the applicant's application under s. 4 (7) of the Immigration Act 2004 regarding two questions. The respondent contended that the impugned order opened the gate for such persons to remain in the State as a matter of right under the Act of 2003.

Mr. Justice Barr granted the certificate for leave to appeal to the Court of Appeal to the respondent. The Court held that before granting any certificate for leave to appeal, it must be seen that the decision involved a point of law of utmost public importance that needed to be resolved to solve the uncertainty to eliminate any ambiguity that could arise in similar cases in the future. The Court observed that the impugned order would have far-reaching implications on similarly situated applicants who were residing in the State beyond the permitted period giving them the benefit of long stay in the State at the expense of depletion of limited availability of State resources.

JUDGMENT of Mr. Justice Barr delivered on the 17th day of June, 2015
Introduction
1

This is an application for a certificate to appeal pursuant to s. 5(3)(a) of the Illegal Immigrants Trafficking Act 2000 (‘the 2000 Act’) in respect of the judgment of this court in Luximon v. Minister for Justice [2015] IEHC 227, which was delivered on 27th March, 2015. The background to this case is set out in detail in the court's judgment and I therefore provide only a brief overview here.

Background
2

The applicants in this case were a Mauritian national mother and her minor daughter. The applicant had been in the State on foot of a student visa since July 2006. On 30th October, 2012, she applied to the Minister under s. 4(7) of the Immigration Act 2004 (‘the 2004 Act’) for a change of immigration permission from a stamp 2 permission to a stamp 4 permission. Under stamp 2 conditions, a person is permitted to remain in the State to pursue a course of studies on condition that the holder does not engage in any business or profession other than casual employment (defined as 20 hours per week during school term and up to 40 hours per week during school holidays) and does not remain later than a specified date. In addition, the person has no recourse to public funds unless otherwise provided. A stamp 4 permission allows the grantee to both reside and work in the State

3

The applicant was at this point classified as a ‘timed out’ non-EEA national student, because she had been in Ireland for in excess of three years, which was the duration of residence permission that applied to her as a language and non-degree programme student. The applicant's s. 4(7) application was refused by the Minister in a decision dated 5th November, 2012.

4

At the time of her s. 4(7) application on 30th October, 2012, the applicant's permission to reside in the State had been expired for four months. In the letter rejecting her s. 4(7) application, however, the applicant was granted a further permission to reside in the State from 13th November, 2012 to 19th December, 2012 in order to finalise her affairs.

5

From 23rd January, 2013, to 23rd May, 2013, the applicant was present in the State on a stamp one permission, granted on foot of a general immigration letter. This letter stated that the applicant was being granted permission to remain for four months in order ‘to enable an employer to apply for a Work Permit on her behalf.’

6

By notice of motion dated 12th February, 2013, the applicant instituted proceedings challenging the respondent's decision of 5th November, 2012 to refuse her application for a change of status/permission to remain in the state pursuant to s. 4(7) of the 2004 Act.

7

The applicant described the Minister's position in this case as ‘ stark.’ In this regard, the applicant pointed out that the Minister had stated that she was not obliged to consider personal and family rights in the context of a s. 4(7) application, and that these matters are to be taken into consideration at the stage of expulsion from the State, i.e. in the context of the deportation process under s. 3 of the Immigration Act 1999 (‘the 1999 Act’).

8

The applicant submitted that this was incorrect as a matter of law. The applicant submitted that the statutory discretion under s. 4 of 2004 Act must be exercised in accordance with the provisions of s. 4 itself, the Constitution, and the European Convention on Human Rights (‘the ECHR’). In support of this argument the applicants relied, inter alia, on the judgments of Cooke J. in O'Leary v. Minister for Justice, Equality and Law Reform [2012] IEHC 80 and Edwards J. in Moylan v. Minister for Justice, Equality and Law Reform [2009] IEHC 500, as well as case law of the European Court of Human Rights.

9

Counsel for the respondent rejected the applicant's characterisation of the central issue in the case. He submitted that the central issue was more nuanced than was suggested by the applicant in circumstances where the individual concerned was given a specific, finite permission (i.e. a student visa) to enter and remain in the State, and that permission had come to an end.

10

In its judgment delivered on 27th March, 2015, the court quashed the decision of the Minister of 5th November, 2012, refusing the applicant's s. 4(7) application, on the grounds that:

(i) The Minister had failed to take into account relevant considerations when making her decision in respect of the applicant's s. 4(7) application, namely, any rights the applicants may have had pursuant to the Constitution and/or the European Convention on Human Rights that were engaged by the decision; and

(ii) The Minister had failed in her obligation to publish the criteria that will be taken into account by the Minister or an immigration officer acting on her behalf when determining a s. 4(7) application from a ‘timed-out’ non-EEA national student for a change of immigration permission to a stamp 4 permission.

11

On foot of this decision, the respondents are now asking this court to certify the following questions as ones involving points of law of exceptional public importance such that it is desirable in the public interest that an appeal should be brought before the Court of Appeal:

(i) Is the respondent obliged to consider rights alleged to arise under the Constitution/ European Convention on Human Rights Act, 2003 in applications made under s. 4(7) of the Immigration Act, 2004 by or on behalf of persons whose permission to be in the State has expired where such rights must be considered by the respondent where the respondent is considering whether or not to make a deportation order in respect of the person concerned in the deportation process under s. 3 of the Immigration Act, 1999?

(ii) Is there an obligation imposed in law on the respondent to publish any criteria applicable under s. 4(7) to a person in the first named applicant's position, i.e. a timed-out non-EEA student without any current residence permission at the time of the application who seeks permission to change their immigration status?

Principles governing an application for leave to appeal
12

The requirement for leave to appeal arises from the provisions of s. 5(3) of the Illegal Immigrants (Trafficking) Act 1999 (as amended by the Immigration Act 2004). The pre-2014 version of section 5(3) provides as follows.

‘(3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.’

13

Section 75 of the Court of Appeal Act 2014 provides as follows.

‘75. Without prejudice to the generality of section 74, a reference (howsoever expressed) contained in any enactment passed or made before the establishment day, to a decision or determination of the High Court which is stated to be final, subject to a right of appeal to the Supreme Court in certain circumstances, including by way of certification or leave of the High Court, or as the case may be, the Supreme Court—

(a) shall be construed as being without prejudice to Article 34.5.4° of the Constitution, and

(b) in respect of a reference in that regard to the ‘Supreme Court’, shall be construed as a reference to the Court of Appeal unless the context otherwise requires.’

14

Accordingly, under s. 75 of the Courts of Appeal Act, s. 5 of the 2000 Act applies to the Court of Appeal as it has, and still does, to the Supreme Court.

15

The test under s. 5 of the 2000 Act for when an appeal will lie is a replica of provisions which previously applied to judicial reviews in the planning and...

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1 cases
  • B.S (India) v The Minister for Justice and Equality (No.3)
    • Ireland
    • High Court
    • 12 October 2020
    ...[2016] IEHC 222 (Unreported, High Court, Mac Eochaidh J., 25th April, 2016); Luximon v. The Minister for Justice, Equality & Law Reform [2015] IEHC 383 (Unreported, High Court, Barr J., 17th June, 2015); I.R v. Minister for Justice Equality and Law Reform [2009] IEHC 510, [2015] 4 I.R. 144;......

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