Rughnoonauth v The Minister for Justice and Equality; Omrawoo v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 05 December 2018
• Neutral Citation: [2018] IECA 392
• Date: 05 December 2018
• Court: Court of Appeal (Ireland)
• Docket Number: APPEAL NO: 2017/310 APPEAL NO: 2017/392

[2018] IECA 392

THE COURT OF APPEAL

Peart J.

Peart J.

McGovern J.

Baker J.

APPEAL NO: 2017/310

APPEAL NO: 2017/392

BETWEEN:

VIKRAM SHARMA RUGHOONAUTH

AND

RISHMA RUGHOONAUTH

APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN:

SHYANI DEVI OMRAWOO

RESPONDENT

- AND -

MINISTER FOR JUSTICE AND EQUALITY

APPELLANT

Deportation – Student immigration permission – Settled migrant status – Applicants seeking judicial review – Whether a person who has been present in the State under a student immigration permission (Stamp 2) has “settled migrant” status

Facts: In the case of Mr and Ms Rughnoonauth, their application for leave to seek a judicial review of a deportation order was refused by order of the High Court (Humphreys J) dated 1st June 2017, and they sought to appeal against that refusal. The following point of law was certified by Humphreys J: “Given their periods of residency in the State as students, are the applicants considered as “settled migrants” and if so, must the respondent when considering whether or not she is to deport them, acknowledge that their deportation would engage the operation of Article 8 ECHR and conduct a proportionality exercise pursuant to Article 8 (2) of the ECHR in order to determine whether the aims/interests of the State are such as will outweigh the private life rights of the applicants that would be engaged by their deportation?” In the case of Ms Omrawoo, she was granted leave to seek judicial review, and by order of the High Court (O’Regan J) dated 14th June 2017 was granted an order of certiorari quashing a deportation order dated 27th May 2016 made by the Minister for Justice and Equality. The Minister appealed against that order, having been granted leave to appeal in respect of two questions: (a) where a person has been granted a student permission is he or she entitled to or eligible as a matter of right to ‘settled migrant’ status within the meaning of the jurisprudence of the European Court of Human Rights notwithstanding the finite and qualified nature of such an immigration permission; (b) if so, whether such a person can lose their ‘settled migrant’ status within the meaning of Article 8 ECHR by virtue of the expiry of his or her student permission followed by a period of unlawful residence within the State.

Held by the Court of Appeal (Peart J) that in the case of Ms Omrawoo the trial judge erred when she concluded that a “student permission such as that enjoyed by the instant applicant from 10th December, 2007 to 30th September, 2012 gives rise to the applicant being characterised as ‘a settled migrant’ for that period”. Peart J therefore allowed the Minister’s appeal, and set aside that part of the order dated the 14th June 2017 which ordered that the deportation order dated 27th May 2016 be quashed.

Peart J held that while in the vast majority of cases of persons in the State on foot of a student permission, such private life rights under Article 8 as may have been acquired while here will not be such as to engage the right to an assessment one could never rule out the possibility that in an exceptional case, such an assessment might not be required. For that reason, Peart J considered that in the case of Mr and Ms Rughnoonauth the trial judge was wrong to conclude as he did on the leave application by stating: “There are no substantial grounds to contend that students present on permissions for up to the maximum 7-year period, or present in the State thereafter without permission, are settled migrants; nor are there substantial grounds for contending that the deportation of such persons breaches Art. 8 of the ECHR in the absence of exceptional circumstances.” Peart J therefore allowed Mr and Ms Rughnoonauth’s appeal against the refusal of leave to seek judicial review. However, he would not remit the application for leave to the High Court for any reconsideration in light of his conclusions. He was satisfied that there were no substantial grounds for considering that Mr and Ms Rughnoonauth, on the facts asserted by them, had an entitlement to a proportionality assessment.

Appeals allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 5TH DAY OF DECEMBER 2018

1 These two appeals raise the same issue and may be conveniently the subject of a single judgment. In the case of VR and RR, their application for leave to seek a judicial review of a deportation order was refused by order of the High Court (Humphreys J.) dated 1st June 2017, and they seek to appeal against that refusal.

2 In the case of SO, she was granted leave to seek judicial review, and by order of the High Court (O'Regan J.) dated 14th June 2017 was granted an order of certiorari quashing a deportation order dated 27th May 2016 made by the Minister. The Minister appeals against that order, having been granted leave to appeal in respect of two questions which I set out below.

3 For convenience, I will refer VR, RR and SO either by their initials or simply as ‘the applicants’, since using ‘appellants’ or ‘respondents’ will be apt to confuse since they are appellants in one appeal and respondents in the other.

4 Each of VR, RR and SO are nationals of the Republic of Mauritius. Each on different dates entered the State, and resided here lawfully on foot of a student permission (Stamp 2) with conditions attached thereto, and upon the expiry of these permissions remained in the State unlawfully. In due course in each case the Minister made a deportation order.

5 The period of unlawful residence up to the date of the respective deportation orders for each of these persons is of different duration. In the case of VR the period is three years and nine months. In the case of RR (his wife) the period is one year and five months, and in the case of SO the period of three years and nine months.

6 The Stamp 2 student permission has a number of conditions attaching, namely:

(a) Student permissions are for one year only;

(b) Since 2011, the maximum stay permitted on foot of renewals is for a period of 7 years;

(c) Holders have no right to bring family members to the State;

(d) Student permissions are not automatically renewable;

(e) Student permissions cannot amount to reckonable residence in law for the purposes of naturalisation;

(f) Holders can work only a limited number of hours per week;

(g) Holders must be enrolled in an accredited educational institution;

(h) Holders have no access to public resources.

7 Each of VR, RR and SO must be taken to have been aware of these conditions attaching to their student permission to be in the State, and of the requirement that they must leave the State upon the expiry thereof.

8 Nevertheless, VR, RR and SO contend that at the date on which the deportation orders were made they were ‘settled migrants’ and as such entitled to a detailed consideration of their private life rights under Art. 8 ECHR, including a proportionality assessment by the Minister under Art. 8.2 ECHR before any decision is taken to deport them.

9 In the case of SO the High Court (O'Regan J.) concluded after the full hearing (leave having been granted) that SO was a settled migrant since she had been residing lawfully on foot of her student permission for a portion of her overall period of residence in the State. The Minister appeals against that finding.

10 In the cases of VR and RR the High Court (Humphries J.) refused leave on the basis that the grounds sought to be advanced to impugn the deportation orders in question did not constitute substantial grounds. He went on to grant leave to appeal having first refused to accede to an application to set aside his previous order refusing leave (the order not having been by then perfected), having regard to the decisions of this Court in Luximon v. Minister for Justice and Equality [2016] IECA 382, and Balchand v. Minister for Justice and Equality [2016] IECA 382.

11 The Minister was given leave to appeal by O'Regan J. in respect of two questions:

(a) Where a person has been granted a student permission is he or she entitled to or eligible as a matter of right to “settled migrant” status within the meaning of the jurisprudence of the European Court of Human Rights notwithstanding the finite and qualified nature of such an immigration permission.

(b) If so, whether such a person can lose their “settled migrant” status within the meaning of Article 8 ECHR by virtue of the expiry of his or her student permission followed by a period of unlawful residence within the State.

12 The following point of law was certified by Humphreys J.:-

‘Given their periods of residency in the State as students, are the applicants considered as ‘settled migrants’ and if so, must the respondent when considering whether or not she is to deport them, acknowledge that their deportation would engage the operation of Article 8 ECHR and conduct a proportionality exercise pursuant to Article 8 (2) of the ECHR in order to determine whether the aims/interests of the State are such as will outweigh the private life rights of the applicants that would be engaged by their deportation?’

13 The issue for determination therefore is common to both appeals, which is essentially whether a person who has been present in the State under a limited, conditional and temporary permission in the form of a student immigration permission (Stamp 2) has ‘settled migrant’ status for the purposes of any consideration of rights asserted by him/her to exist under Art. 8 ECHR when the Minister is deciding whether to make a deportation order following the expiry of the student permission and any renewals thereof.

14 Art. 8 ECHR provides:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a...