RG v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 24 November 2016
• Neutral Citation: [2016] IEHC 733
• Docket Number: [2016 No. 8 JR]
• Court: High Court
• Date: 24 November 2016

[2016] IEHC 733

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2016 No. 8 JR]

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, AS AMENDED

BETWEEN

R.G.

S.G.

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking (Act), 2000 – S.4 (1) of the Immigration Act 2004 – Status of non-national applicants – Judicial discretion

Facts: The applicants applied to the respondent for change in their respective immigration status and to have permission to remain regularised on Stamp 4 conditions pursuant to s.4 of the Immigration Act 2004. The respondent rejected their respective applications on the basis that s. 4 of the Act of 2004 was inapplicable to them and hence, their position would be dealt under s. 3(6) of the Immigration Act 1999. The key issue was whether the applicants were entitled to apply under s. 4 of the 2004 Act.

Ms. Justice O'Regan held that the applicants were not entitled to seek permission to remain in the State under s. 4 of the Act of 2004 as the said section applied to the persons arriving in the State and not the present applicants who were already present and working in the State illegally. The Court held that even if it was to hold that the applicant could apply under s. 4, it would not exercise its discretion in favour of the applicants on the basis of the conduct of the applicants in disregarding the immigration system.

JUDGMENT of Ms. Justice O'Regan delivered on the 24th day of November, 2016

Issues

1 The issue before the Court is as to whether or not s. 4(1) of the Immigration Act 2004 applies to the instant applicants as, if it does; insufficient reasons were afforded by a decision of the respondent of the 8th January, 2016. However, if s. 4(1) does not apply, the reasons afforded in the letter of 8th January, 2016 are satisfactory. In the event that I find that a valid application was made under s. 4 of the 2004 Act then it is agreed I must go on to consider whether or not I will exercise my discretion having regard to the activities of the applicants.

Background

2 The applicants are a married couple from Mauritius. The second named applicant has not contended that she was ever within the jurisdiction prior to in or about August, 2013 when both parties arrived in the jurisdiction via Belfast without a visa or without permission anticipated under s. 4 of the 2004 Act. Subsequently they each applied for permission under s. 4 as aforesaid by letters of 20th October, 2015. Both applications are grounded upon the affidavit of the first named applicant sworn on 8th January, 2016.

3 The first named applicant was previously validly in the jurisdiction as and from January, 2007 until in or about 3rd February, 2012 when his leave expired. He returned to Mauritius in February, 2012 and in November, 2012 married the second named applicant. It appears from the affidavit that the parties intended to emigrate to Canada but ran into some difficulty. Because of an unsatisfactory residential circumstance within Mauritius they resolved to go to Europe and they did so, as aforesaid, in or about August, 2013. The respondent complains that there are no documents whatsoever to establish the veracity of the content of either the first named applicant's affidavit aforesaid or the applications on behalf of both applicants of 20th October, 2015. As part of his application under the heading of ‘employment prospects’ in the letter of 20th October, 2015 on behalf of the first named applicant it is suggested that his former employer would have no hesitation in reemploying him should his application be successful. In addition the preceding paragraph states: ‘Mr. Gunnack has demonstrated a desire to aid his employment prospects …’ Certainly the impression afforded from a perusal of the documentation on behalf of the first named applicant suggests that notwithstanding that he is in the jurisdiction since August, 2013 he has not been working. The foregoing notwithstanding it appears from a letter from the Department of Social Protection that in fact he had been working for a full 19 weeks in 2013 and full-time in both 2014 and 2015.

4 By an application bearing date 20th October, 2015, each of the applicants herein separately applied to the respondent for a change in their respective immigration status and to have permission to remain regularised on Stamp 4 conditions. The heading of both applications is an application for permission to remain pursuant to s. 4 of the Immigration Act 2004. The respondent responded to the applications aforesaid by a letter of 8th January, 2016 to the effect that the position was that the provisions of the Act were not applicable to the applicants' cases as they were not originally permitted to land in the State under s. 4 of the Act when they entered the State in 2013. The letter went on to state that the position of the applicants in the State would be dealt with under s. 3(6) of the Immigration Act 1999, as amended and s. 5 of the Refugee Act 1996, as amended. The letter states that all representations submitted would be considered before a final decision is made.

5 The applicant asserts that the application was properly made under s. 4 of the 2004 Act and specifically under s. 4(1) thereof and that insufficient reasons were afforded by the respondent for rejecting the application. The respondent suggests that s. 4(1) was not engaged in all of the circumstances and therefore the reasons afforded in the letter were sufficient.

Section 4 Considerations

6 In submissions the applicants state that they have never claimed to have been lawfully residing or have lawfully entered the State since thy arrived in August, 2013. The submissions in writing afforded in advance of the hearing in the main concentrated on the obligation to give reasons. Such an obligation in the context of a proper application under s. 4 is not denied by the respondent. The respondent's position is simply that s. 4 is not engaged in the circumstances of the applicants' coming to and residing in Ireland since August, 2013 without permission and without a visa which would be required for nationals from Mauritius.

7 Section 4 (1) of the Act provides:-

‘Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this Act as ‘a permission’).’

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