Omrawoo v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] IEHC 326 |
| Court | High Court |
| Docket Number | [2016 No. 629 J.R.] |
| Date | 24 May 2017 |
[2017] IEHC 326
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2016 No. 629 J.R.]
Asylum, Immigration & Nationality – Judicial review – Revocation of deportation orders – Art. 8 of European Convention on Human Rights (‘ECHR’) – Settled migrant
Facts: The applicant sought an order of certiorari for quashing the deportation orders made against the applicant. The applicant averred that the respondent had erred in her consideration of the effect of the deportation orders on the private life rights of the applicant under art. 8 of the ECHR. The issue in the proceedings was limited to finding a determination of the status of the applicant, whether it was precarious or the applicant was a settled migrant. The respondent contended that if it was determined that the applicant was a settled migrant for the relevant period; the respondent would not seek to support its decision.
Ms. Justice O'Regan delivered a limited judgment to the extent of answering the relevant question. The Court held that the applicant could be characterised as a ‘settled migrant’ in the light of the judgment of the present Court in W.S. v the Minister for Justice and Equality [2017] IEHC 128 subject to amendment to para. 22 of the said judgment by the inclusion of the word ‘implicit.’ The Court held that the applicant was on student permission and thus the applicant could be categorised as a settled migrant for that period. The Court held that it was not satisfied that the subsequent illegal status of the applicant would eliminate the prior settled migrant status that the applicant enjoyed while being on a student visa.
Leave was afforded on the 29th July 2016 to the within applicant to maintain judicial review proceedings for the purposes of seeking an order of certiorari quashing the deportation order of the 27th May 2016 made against the applicant.
In the statement of grounds four grounds are set out however only the first two were pursued namely that the respondent erred in her consideration of the effect of the deportation order on the private life rights of the applicant and it flies in the face of common sense that the decision to deport the applicant does not constitute an interference of such gravity as to engage Article 8 of the ECHR. In addition it is claimed that the consideration of the private life rights was flawed having regard to the length of time the applicant had been in the State her level of integration and the information furnished.
A statement of opposition has been filed bearing the date 8th March 2017. In it the application for certiorari is opposed on the basis that the respondent has provided reasons and a rationale for the conclusions which are discernable from the decision and that the applicant entered the State on a finite basis with a limited right to reside and was obliged to leave at the expiry of the said permission. It is also argued that the respondent was not required to justify the proposed deportation in accordance with Article 8 (2) of the ECHR and this is appropriate as the respondent had concluded on the individual facts of the within case that the potential interference did not have consequences of such gravity as to engage the operation of Article 8. The respondent also argues that upon expiry of the applicant's permission, she remained in the State illegally and accordingly the respondent applied the correct test, i.e. the applicant's position was precarious as distinct to that of a ‘settled migrant’.
At the opening of the hearing of the application the applicant contended that the deportation order of 27th May 2016 could not be condemned if the entirety of the applicant's stay in Ireland was considered precarious. In this regard the applicant submits that in fact during the currency of her period of permission she was a settled migrant.
Although in written submissions the respondent argued that even if the applicant might be considered a settled migrant nevertheless the decision should not be impeached, however, this aspect of the opposition to the applicant's application was withdrawn at the opening of the matter and the respondent suggested that if it was considered that the applicant was a settled migrant for some or all of a period of residence within the State then the respondent would not seek to support the decision and to this end the respondent argued that notwithstanding the applicant's student status within Ireland continuously for a period from 10th December 2007 until 30th September 2012, nevertheless the applicant was in a precarious status throughout that period and was not considered to be a settled migrant.
Both parties therefore agree that the status of the applicant as a settled migrant or as precarious is dispositive of the within proceedings and both parties refer to the judgment of Lord Reid in Agyarko v. Secretary of State for the Home Department [2017] 1 WLR 823.
At para. 54 of the Lord Reid judgment aforesaid it is stated:
‘As explained in para 49 above, the European court has said that, in cases concerned with precarious family life, it is ‘likely’ only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8.’
This Court delivered judgment in the matter of W.S. v. the Minister for Justice and Equality [2017] IEHC 128 on 23rd February 2017 and it was held that the applicant was a settled migrant in Ireland for the one year period for which he had student permission and the applicant relies on this judgment in support of her submissions. On the other hand the respondent argues that the judgment in W.S. should not be followed as same was made in the absence of information being made available to the court namely:
(a) the judgment of Humphreys J. delivered on 14th November 2016 in Rughoonauth v. Minister for Justice and Equality [2016] IEHC 656 and
(b) legislation introduced in 2014 in the United Kingdom.
In addition the respondent argues that W.S. should not be followed because of an error within the body of the decision namely at para. 22 thereof where it is stated that the Court of Appeal recognised in the judgment of Balchand v. The Minister for Justice and Equality [2016] IECA 383 and Luximon v. The Minister for Justice and Equality [2016] IECA 382 that student permission can be considered within the concept of a settled migrant.
The respondent is correct in identifying the error in para. 22 of the judgment of W.S. aforesaid (albeit by the omission of a single word, in error) and for this reason as well as because the information aforesaid was not brought to the court's attention in advance of the delivery of the judgment in W.S. this court agreed to re-visit the concept of students coming within the ambit of the settled migrant bracket for the purposes of the Article 8 assessment.
During the course of the hearing neither party developed any argument further in respect of the deportation order decision but rather confined their submissions to whether or not the application of the concept of ‘settled migrant’ applies to the applicant student or not.
The applicant was born in 1985 and is from Mauritius. She arrived in Ireland on 15th October 2007 on a visa. Subsequently as and from 10th December 2007 she secured student status – stamp 2 status. This permission was renewed annually and ultimately expired on the 30th September 2012.
It is common case that the applicant lived in Ireland for a period prior to coming into force of the student scheme of the 1st January 2011 which provides that an overall maximum period of seven years of student permission would be available within this jurisdiction save in certain exceptional circumstances. When the applicant first secured student permission in 2007 such scheme was not in place nor was a similar type scheme limiting the duration of the student within the jurisdiction in place.
On 27th February 2013 the applicant applied to the respondent for a change of permission status to that of stamp 4 permission. Subsequently on 12th April 2013 the applicant applied for a temporary stamp 4 permission to work pending the decision to be made in respect of the application of 27th February 2013. By decision of the 9th of September 2013 both applications were refused.
It is clear from details in the applicant's application for permission to work aforesaid that notwithstanding the expiry of her student permission in September 2012 the applicant continued to work in the State. Accordingly the applicant's residence in this State as and from the 30th September 2012 can be considered to be without permission and the applicant has been working at least for some time within this jurisdiction without permission in defiance of Immigration legislation. In this regard s. 5 of the Immigration Act 2004 provides:
‘(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.
(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.
Although there are exception to s. 5 (2) above in subs. 3 these exceptions do not apply in the instant matter.
In the Rughoonauth (No.1) judgment aforesaid the applicants were students from Mauritius who overstayed their permission since 2012 and 2014 respectively. They processed an application for leave to seek judicial review on the basis that the Article 8 consideration in the impugned...
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