Rughoonauth v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IEHC 656
• Date: 14 November 2016
• Court: High Court
• Docket Number: [2016 No. 668 J.R.]

[2016] IEHC 656

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 668 J.R.]

BETWEEN

VIKRAM SHARMA RUGHOONAUTH

AND

RASHMA RUGHOONAUTH

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Illegal stay – Expiration of temporary student permission – Deportation orders – Art. 8 of ECHR – Immigration Act 2004

Facts: The applicants sought leave to seek judicial review against the respondent's decision to deport the applicants. The applicants, who were in the State as temporary students, contended that the respondent had failed to engage in the applicants' rights under art. 8 of ECHR while making deportation orders.

Mr. Justice Richard Humphreys refused to grant leave to the applicants. The Court held that students were not settled migrants and once the permission to stay in the State expired; their presence in the State became illegal. The Court held that the respondent was not required to consider the rights of the applicants under art. 8 of ECHR as there existed no or virtually minimal rights under the said art. 8.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

1 The applicants are students from Mauritius who enjoyed the benefit of temporary student permissions but then illegally overstayed. The first named applicant received a permission in 2008 but has been present in the State illegally since September, 2012. The second named applicant received a permission in 2009 and has been illegally present in the State since December, 2014.

2 The substantial grounds test applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and I have had regard to the law in relation to that test including McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 as approved in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 395.

Are there substantial grounds for contending that the deportation order is contrary to art. 8 rights of the applicant?

3 Mr. Ian Whelan B.L. for the applicant submits that a person with a permission is a settled migrant. This submission is fundamentally misconceived. The ECHR case law is clear that a person whose immigration status is ‘ precarious’ is not a settled migrant and does not enjoy significant rights under art. 8 of the ECHR. A person who enjoys a purely temporary and transitory permission, such as for a limited period to pursue a course of study, is precisely the type of person in a ‘ precarious’ position that the Strasbourg court envisages (see C.I. v. Minister for Justice Equality and Law Reform [2015] IECA 192 (Unreported, Court of Appeal, 30th July, 2015) (Finlay Geoghegan J.) citing Nnyanzi v. UK [2008] 47 EHRR 18). To illustrate this point, I noted in Li v. Minister for Justice and Equality [2015] IEHC 638 (Unreported, High Court, 21st October, 2015) at para. 65 that the UK Immigration Act 2014 s. 19 has identified precarious and unlawful positions separately in terms of the application of art. 8. Mr. Whelan's submission is fundamentally misconceived because it collapses this distinction and assumes that if one is not unlawful one is...