Pfakacha v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 19 July 2017
• Neutral Citation: [2017] IEHC 620
• Date: 19 July 2017
• Court: High Court
• Docket Number: [2014 No. 149 J.R.] [2014 No. 150 J.R.]

BETWEEN

BLESSING PFAKACHA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

BETWEEN

TAKUDZWA MICHAEL NYAZEMA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2017] IEHC 620

[2014 No. 149 J.R.]

[2014 No. 150 J.R.]

THE HIGH COURT

Asylum, Immigration & Nationality – S. 4 (7) of the Immigration Act 2004 – Permission to remain in State – Personal circumstances – Unfettered discretion

Facts: In the present telescoped hearing, the applicants sought leave and orders of certiorari for quashing the decisions of the respondent for denying permission to the applicants to remain in the State. The applicants claimed that they had come to the State on a Stamp 3 visa for the purpose of taking care of their ill mother and siblings. The respondent argued that the applicants' case did not warrant the change of immigration status, and in order to avail the required status, they needed to obtain employment in the State after taking work permit. The applicants asserted that the respondent had unreasonably applied its discretion in putting a restriction of obtaining the work permit as a condition for remaining in the State. The applicants further argued that the respondent had not given adequate reasons for its decision.

Ms. Justice Faherty granted orders of certiorari to the applicants and, thus, quashed the decisions of the respondent. The Court held that the respondent had fettered its discretion by not assessing the representation made by the applicants on humanitarian grounds. The Court found that the applicants' personal circumstances could have been taken into account by the applicants before exercising its discretion under s. 4(7) of the Immigration Act 2004. The Court noted that it was within the ambit of the respondent's discretion to issue a Stamp 4 permission to the applicants to remain in the State without having the applicants to obtain the work permit.

JUDGMENT of Ms. Justice Faherty delivered on the 19th day of July, 2017

1 These are telescoped proceedings, in which the applicants seek, inter alia, orders of certiorari by way of application for judicial review to quash the decisions of the respondent not to vary their respective permissions to be in the State as notified to the applicants in letters dated 13th January, 2014.

Extension of time

2 An extension of time is required for the issuing of the within proceedings. They were instituted on 7th March, 2014, some seven weeks or so after the impugned decisions issued. The respondent submits that the applicants have wholly failed to comply with the requirement to institute any judicial review proceedings within fourteen days (as then applied), and the respondent submits that no information has been deposed to by the applicants to justify or explain the delay in instituting the proceedings.

3 The explanations tendered by the applicants for the delay is that following receipt of the decisions on 17th January 2014, they contacted their solicitor several days later and advised him that they wished to challenge the decisions. After being briefed their counsel had several queries in relation to the papers and was not in a position to draft and return proceedings until 25th February, 2014. According to the applicants, the 6th March, 2014, was the earliest date they could meet with their legal representative in order to complete the papers.

4 On balance, the court is satisfied to extend the time for the issuing of proceedings. While there was undoubtedly delay the applicants have explained same to a sufficient extent. I also note that in the two years or so preceding the hearing of the substantive proceedings, the respondent did not seek to strike out the proceedings on the basis of delay.

Background

5 The applicants are nationals of Zimbabwe who have resided in the State since in or around 23rd March, 2011. They are step brother and step sister, both with a date of birth in 1988. The applicants entered the State on foot of a permission to remain on a 'Stamp 3' basis, whereby they are not entitled to enter employment or engage in any business or profession in the State. The applicants were granted this permission for the purpose of joining their parents both of whom were ill and needed help with caring for their other children. The applicants' family unit in the State comprises:

• L.P., the first applicant's step mother and the second applicant's natural mother who was naturalised as an Irish citizen on 14th June, 2012;

• A.P., the first applicant's natural father and the second applicant's step father who is also a naturalised Irish citizen since 2010;

• J.P., the applicants' brother born 15th June, 1991 who was naturalised as an Irish citizen in January, 2014 and who was at the time of the institution of the proceedings in full time third level education;

• M.P., the applicants' brother born 11th March, 1997, who is an Irish citizen having been naturalised in 2013; and

• T.P., the applicants' brother who is an Irish national with a date of birth of 4th August, 2004.

6 Some months after their arrival in the State, A.P. recovered from his medical illness and abandoned the family unit.

7 The applicants' mother is in full time employment. She suffers from rheumatoid arthritis which requires medication indefinitely. Their younger brother, M.P., suffers from Hypophosphatemic Rickets, which has necessitated numerous serious surgical procedures.

8 Both applicants were over eighteen years of age when they first arrived in the State. They were permitted to enter as an exceptional measure on the basis of their parents' respective illnesses and that their assistance was required in order to help look after their other siblings, as well as give help to their ill parents.

9 Four months after their arrival in the State, in July, 2011, the applicants applied for a change in their permission to remain pursuant to s. 4(7) of the Immigration Act 2004 ('the 2004 Act'). They sought permission to work. This request was refused in 2011. No challenge was brought against this refusal.

10 On 26th June, 2012 and 26th July, 2012, respectively, both applicants again applied for a change in their permission, again to permit them to work. These applications were refused in respect of the first applicant on 10th May, 2013 and in respect of the second applicant on 18th September, 2012. Again, no challenge was brought to either of the said refusals.

11 On 20th May, 2013, a third application for a change in the applicants' permission to remain was made, with further documents in support of this application submitted on 27th May, 2013. It is the refusal of these applications which is the subject of the within challenge.

12 The case made for Stamp 4 permission for the applicants can be summarised as follows:

• Their mother had become an Irish citizen in 2012;

• The applicants wished to help end the financial burden on their mother as the sole bread winner in the family. While their mother was working full time her circumstances, particularly her illness, required financial assistance from the applicants so that she could continue to provide for her family. The applicants' mother was on constant pain killers and dependent on injections to help with her rheumatoid arthritis. As she was only paid for the hours she worked she was not in a position to take time off work even when in extreme pain and the nature of her work was very physical. Her employers were willing to offer both applicants employment if they had permission to work in the State. The employer's letter was enclosed with the application. Medical reports outlining the mother's medical difficulties and her ongoing reliance on medication were also enclosed with the applications.

• Both applicants looked after their younger siblings, took them to school and were effectively rearing them.

• The applicants could not afford third level education and accordingly if they could obtain stamp 4 permission they would be in a position to better themselves and become an asset to the State. The applicants were also finding it difficult to raise the €300 it took to renew their respective permission to be in the State each time it fell to be renewed;

• The applicants were at all times self-sufficient; their mother paid taxes, paid for their rented accommodation and contributed to the Irish economy in a positive fashion by being habitually resident in the State. Hers and the applicants' (if their obtained stamp 4 permission) circumstances would be such that they would not be a burden on the State;

• If granted Stamp 4 permission the applicants would take out private health insurance. This could be made a condition of any decision by the respondent to upgrade their status;

• The role played by the applicants in caring for their younger siblings could not be over emphasised especially as their father had left the family, and given their mother's serious medical complaints and the serious illness from which their younger sibling M.P. suffered. His circumstances were such that he required a specific diet which the family could not afford because of financial constraints and this was causing a detrimental effect on his health.

Accompanying the letter of 20th May, 2013, were, inter alia, emails from the applicants to their solicitor wherein they outlined particular concerns regarding their younger siblings and the pressure their mother was under in trying to provide for the family, together with an email from L.P. outlining her efforts to take care of her five children (which included the applicants) and the financial and medical difficulties she was encountering.

13 In the respective refusal letters dated 13th January, 2014, the respondent advised that the applicants' individual circumstances, including all matters known to the respondents and which were averted to in the applications, were...