Luximon & ors -v- Minister for Justice & Equality Bachand & ors -v- Minister for Justice & Equality,  IESC 24 (2018)
|Docket Number:||9/17 & 10/17|
|Party Name:||Luximon & ors, Minister for Justice & Equality Bachand & ors -v- Minister for Justice & Equality|
THE SUPREME COURT [Appeal No. 58/2016]
DANIYE LUXIMON AND PRASHINA CHOOLUN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND DANIYE LUXIMON)
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM
THE IRISH HUMAN RIGHTS & EQUALITY COMMISSION
YASWIN BALCHAND AND SHANDRIKA GOPEE AND CIERON LAKSH BALCHAND (A MINOR SUING BY HIS FATHER AND NEXT FRIEND YASWIAN BALCHAND)
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
THE IRISH HUMAN RIGHTS & EQUALITY COMMISSION
Judgment of Mr. Justice John MacMenamin dated the 24th day of April, 2018
This is a judgment concerning two appeals from the Court of Appeal delivered on the 15th December, 2016. In the first, “Luximon”  IECA 382, the Minister appealed to that court against a judgment of the High Court  IEHC 227. In the High Court, Barr J. determined that, in arriving at a decision under s.4(7) of the Immigration Act, 2004, the appellant Minister had erred in failing to consider the Luximon family’s Article 8 ECHR privacy and family rights in deciding whether to vary or renew their permission to be in the State. The Court of Appeal upheld the High Court judgment, although reversing Barr J. on one ancillary question which is not before this court. In the second appeal, “Balchand”  IECA 383, Humphreys J. at first instance declined to grant judicial review of the Minister’s decision regarding the Balchand family applicants ( IEHC 132), holding that, in making such a decision, the Minister did not have an ECHR duty. The Balchand family successfully appealed, and the Court of Appeal again held that the Minister, who is now the appellant to this Court in both cases, in making his decisions under s.4(7) of the Act of 2004, erred by failing to give consideration to the respondents’ Article 8 ECHR privacy and family rights in refusing to grant a renewal or variation of their permissions to remain in the State. The Minister submits that it was unnecessary to engage in such a consideration at that stage, and that an Article 8 assessment need only take place at what was characterised in this appeal as the final, “deportation”, stage of the procedure. For brevity and clarity, the Luximon appeal will be referred to as “Appeal A”; Balchand as “Appeal B”. The reference to “the Minister” in this judgment is to the holder of that office, as a designated person under the Ministers & Secretaries Act, 1924, as amended. Such reference does not relate to any particular holder of the office, but rather officials acting on the Minister’s behalf.
Ms. Daniye Luximon and Mr. Yaswin Balchand are both citizens of Mauritius. They arrived in Ireland in the year 2006 to avail of an administrative educational scheme set up by the State in 2001. Under that scheme, students were permitted to engage in part-time work, as well as undertake post-secondary level educational courses. By the time of this appeal, Ms. Luximon and Mr. Balchand had been in the State for some 11 years, their family members for a somewhat lesser, but nonetheless significant period.
In July, 2011, the government promulgated a new scheme which set explicit time limits on how long such students might remain in the State. This had significant effects on the respondents’ authorisation to remain here. The new scheme was entitled the “New Immigration Scheme for Full-time Non-EEA Students, registered in Ireland before 1st January, 2011”.
The Respondents’ Status within the State
The following observations are key in understanding the legal status of the respondents. First, they all entered this State lawfully. Their continuous lawful presence here up to 2011 must be taken as a given. Their situations are, therefore, different from those concerning short-term visitors, or entrants engaging in temporary employment, or asylum seekers, who will generally not have established links in, or to, the State. By logical extension, the respondents’ position is very different from that of unsuccessful applicants for asylum who may have exhausted all judicial review procedures. Secondly, by the time the relevant ministerial decisions were made in 2012, each respondent in this appeal had acquired many of the characteristics of long-term migrants, albeit subject to periodic renewal of their residency. Thirdly, the respondents’ legal status in the State was not altered as a result of some unlawful act on their part, but rather by an alteration in government policy. Finally, counsel for the Minister has submitted that these appeals may have a bearing on a significant number of similar cases. However, this judgment is based entirely on the facts as presented in the instant appeals. As such, whether this judgment has a bearing on other cases will depend on the individual facts of each such case. It is necessary now to move to the details of the present appeals.
Daniye Luximon and Prashina Choolun
Ms. Luximon has two daughters. Her elder daughter is not a party to these proceedings. Her younger daughter, Prashina Choolun, the second named respondent in Appeal A, is now in secondary education here. She, too, arrived in the State in 2006. Ms. Luximon engaged in a range of educational courses during her time here. She and her daughter have an established home in Dublin. Ms. Luximon lawfully obtained part-time work through the scheme and has worked for a number of years as a co-ordinator in a dental practice. Throughout her time in Ireland, she and her daughter have generally been a self-supporting family unit. With one exception, described later, she complied with all renewal requirements. There is no indication that there was any difficulty in renewing such permissions up to the year 2011.
On the evidence, Ms. Luximon and her daughter have over the years established significant private, family and social connections, in their home-area, in work and in education.
Yaswin Balchand, Shandrika Gopee and Cieron Laksh Balchand
Having arrived in 2006, Mr. Balchand was joined in 2008 by Shandrika Gopee, the second named respondent in Appeal B. The couple subsequently married. They now have a son, Cieron Laksh Balchand, born in 2009, who is in full-time primary education here. Their permissions were regularly renewed without difficulty up to the year 2011. Their son, Cieron, speaks English with his parents at home. Both adult respondents in this family unit are financially self-supporting and work in the hospitality and catering sector.
This judgment first addresses the literal interpretation of the Act of 2004, and thereafter the manner in which such interpretation might, if necessary, be informed by Article 8 ECHR considerations. But, the following background circumstances are particularly significant.
The fact that the position of the respondents differs from a range of other categories of entrants to the State must be re-emphasised. Additionally, the respondents were not subject to any ongoing fact-finding administrative or quasi-judicial proceeding, such as those which apply in the State’s asylum/international protection system. It also bears re-emphasis that Ms. Luximon and her daughter, having lawfully entered the State, have now together been here for 11 years. By way of distinction to other categories of entrants to this State, Ms. Luximon was permitted under law to work part-time throughout the year, and to work full-time during vacation periods. Similar observations apply to Yaswin Balchand and Shandrika Gopee. All adult respondents earned their living by this work. When both Daniye Luximon and Yaswin Balchand were subsequently joined by family members, the State raised no objection. At the time Ms. Luximon and Mr. Balchand entered the State, they did not require visas. All the respondents see Ireland as their home country, and have established residences here. The adults each have children who might arguably hold individual rights to remain in the State, either by the fact of residence or by birth. In addition to collective privacy and family rights, the appeals also raise intra-familial issues. These observations, together with those made earlier, are of importance as in Balchand, the High Court judge described the respondents’ status (paras. 18-21), as “precarious”; I do not think this was an accurate characterisation.
The term “precarious” is undoubtedly used in ECHR jurisprudence to describe persons whose entitlement to be in the State is highly attenuated. (See, generally, Nunez v. Norway (App. No. 55597/09)  58 EHRR 17, at para. 70, page 535). An unsuccessful asylum seeker may come within that description. In Balchand, the High Court judge, in comparing the respondents’ status to failed asylum seekers, made reference to the judgments of this Court (MacMenamin J., Laffoy J., Charleton J.) in PO v. Minister for Justice  I.R. 164. These judgments must be read in their entirety. To take one illustration, an observation at para. 26 of my judgment in PO, quoted in the High Court judgment in Balchand, should not be misunderstood as holding that an unsuccessful asylum seeker’s rights were “minimal to non-existent” when it came to a decision to revoke a deportation order. The judgments of this Court in PO hold that the Minister has significant duties under s.3(11) of the Immigration Act, 1999, and these duties arise under legal parameters. PO concerned the Minister’s discretion on application to revoke a deportation order made concerning an unsuccessful asylum seeker. Section 3(11) of the 1999 Act allows the Minister to amend or revoke a deportation order made under s.3(1) and (2) of the same Act. In PO, having referred to the relevant provisions of the Act of 1999, I pointed out at para. 15:
“… 15. It would be entirely wrong to conclude that, by reference to these provisions alone, and in operating...
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