Luximon v Minister for Justice

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Finlay Geoghegan
Judgment Date15 December 2016
Neutral Citation[2016] IECA 382
Docket Number[C.A. No. 316 of 2015],Neutral Citation Number: [2016] IECA 382 Appeal No. 2015/316
Date15 December 2016

[2016] IECA 382

THE COURT OF APPEAL

Finlay Geoghegan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2016] IECA 382

Appeal No. 2015/316

BETWEEN
DANIYBE LUXIMON

AND

PRASHINA CHOOLUN
(A MINOR SUING BY HER MOTHER AND NEXT FRIEND,
DANIYBE LUXIMON)
APPLICANTS/RESPONDENTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPELLANT
AND
IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE

Immigration – Order of certiorari – Points of law – Appellant seeking to appeal against an order of certiorari quashing the decision of the appellant – Whether a proposed decision not to renew a permission pursuant to s. 4(7) of the Immigration Act 2004 of a person who had been in the State lawfully pursuant to a s. 4 permission for several years has the potential to be an interference with his/her right to respect for private and family life

Facts: The respondent/appellant, the Minister for Justice and Equality, appealed to the Court of Appeal against the decisions of the High Court (Barr J) in a written judgment of the 20th March, 2015 ([2015] IEHC 227) and order made pursuant thereto. The High Court granted an order of certiorari quashing the decision of the Minister dated the 5th November, 2012, refusing the application of the first applicant/respondent, Ms Luximon, for permission to remain in the State pursuant to s. 4(7) of the Immigration Act 2004 and for what was referred to as a “change of status”. The trial judge certified that the High Court decision involved points of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal be taken: 1) Is the appellant 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 appellant where the appellant 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?; 2) Is there an obligation imposed in law on the appellant to publish any criteria applicable under s. 4(7) to a person in [Ms Luximon’s] position i.e. a timed-out non-EEA student without any current resident permission at the time of application who seeks permission to change their immigration status?

Held by Finlay Geoghegan J that she was in agreement with the trial judge that a proposed decision not to renew a permission pursuant to s. 4(7) of a person such as Ms Luximon who had been in the State lawfully pursuant to a s. 4 permission for several years has the potential to be an interference with her right to respect for private and family life such that it is capable of engaging Article 8 of ECHR. Finlay Geoghegan J held that the question as to whether or not on the particular facts of the application, a decision not to renew the permission would have consequences of such gravity for Ms Luximon and her daughter in relation to their alleged rights to family or private life such that Article 8 is engaged in the sense that term is used in the R. v. Secretary of State for the Home Department ex p. Razgar [2004] UKHL 27, CI v Minister for Justice, Equality and Law Reform and Others [2015] IECA 192 and Dos Santos and Others v Minister of Justice and Equality and Others [2015] IECA 210 judgments is a matter for determination by the Minister subject only to judicial review by the courts.

Finlay Geoghegan J held that she would dismiss the appeal and uphold the order of certiorari which had been granted by the High Court and remit the application to the Minister for further consideration and decision.

Appeal dismissed.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 15th day of December 2016
1

The Minister for Justice and Equality appeals against the decisions of the High Court (Barr J.) in a written judgment of the 20th March, 2015, Luximon v. Minister for Justice [2015] IEHC 227 and order made pursuant thereto. The High Court granted an order of certiorari quashing the decision of the Minister dated the 5th November, 2012, refusing the first applicant, Ms. Luximon's application for permission to remain in the State pursuant to s. 4(7) of the Immigration Act 2004 (‘the 2004 Act’) and for what was referred to as a ‘change of status’.

2

The trial judge certified that the High Court decision involved points of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal be taken:-

1. Is the appellant 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 appellant where the appellant 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?

2. Is there an obligation imposed in law on the appellant to publish any criteria applicable under s. 4(7) to a person in [Ms. Luximon's] position i.e. a timed-out non-EEA student without any current resident permission at the time of application who seeks permission to change their immigration status?

3

This appeal was heard at the same time as another appeal from the High Court (Humphreys J.) in Balchand v. Minister for Justice [2016] IEHC 132. In that case an application for certiorari had been refused to the applicants in relation to an analogous application to the Minister pursuant to s. 4(7) of the 2004 Act.

4

The Irish Human Rights and Equality Commission was granted leave to appear as amicus curiae in both appeals by order of the court of the 29th April, 2016. Helpful submissions were made both in writing and orally on its behalf on the primary issue in both appeals in respect of which the High Court judges had reached differing conclusions.

5

Whilst this judgment is given on the appeal in these proceedings it takes into account the views expressed by the trial judge in the Balchand proceedings and also the submissions made both in writing and orally on that appeal. A separate judgment is being delivered in that proceeding.

Background facts
6

Ms. Luximon is a citizen of Mauritius. The second named applicant is her daughter, also a citizen of Mauritius, who at the time of commencement of the proceedings in 2013, was a minor and in her first year of secondary school in Ireland.

7

Ms. Luximon arrived in the State in July 2006 for the purpose of pursuing a course of study in the State. At the time citizens of Mauritius did not require a visa to enter the State. She was granted permission to remain in the State and was registered on ‘Stamp 2’ conditions. She was joined in the State by her two minor daughters in the same year.

8

‘Stamp 2’ conditions permitted Ms. Luximon to remain in Ireland to pursue a course of studies; precluded her from engaging in any business or profession other than employment for up to 20 hours per week during school term and up to 40 hours per week during school holidays and specified a date beyond which she might not remain in the State. In addition she had no recourse to public funds unless otherwise provided. Ms. Luximon has been continuously employed since her arrival in the State in the role of a dental practice co-ordinator. Ms. Luximon's permission to remain in the State on ‘Stamp 2’ conditions were renewed from time to time and the last such permission expired on the 26th June, 2012.

9

On the 27th March, 2012, her employer had made an application for a Green Card Employment Permit which was not successful.

10

By letter dated the 30th October, 2012, application was made by Ms. Luximon's solicitors for renewal of her permission to remain in the State pursuant to s. 4(7) of the 2004 Act and for a change in her immigration status to ‘Stamp 4’ conditions. The application specifically referred to the protection of the applicants' rights to private and family life pursuant to Article 8 of the Convention on Human Rights :

‘Article 8 ECHR Rights engaged

Our client and her daughters have been resident in the State permanently since 2006. The family have a wide network of friends and are fully integrated into their local community. Ms. Luximon instructs that she is very happy in the State and that her daughter is thriving at school. She says her sole motivation is to continue to contribute to the local and family economy.

The European Court of Human Rights has noted that the protection of Article 8 of the European Convention on Human Rights both in its ‘family life’ and ‘private life’ applies to integrated aliens or long term residents of an EU Member State (see the case of Uner v. Netherlands). Clearly, Article 8 of the ECHR is engaged by our client. For the Minister to refuse the within application to allow Ms. Luximon to reside lawfully in the State so as to provide for her minor daughter financially, would result in their Article 8 rights being irreparably infringed. We would respectfully submit that the Minister in his Article 8 assessment of this application ought to consider the best interests of the minor child, as per the guidance of the UK Supreme Court in ZH Tanzania.

Conclusion

Our client's immigration history in the last number of years has been exemplary. Whilst the present lapse of her permission to remain is regrettable, she has endeavoured to remedy this. It was never her intention to become illegally present in the State. It is acknowledged that the State has the right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and international agreements. It is further acknowledged...

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