S.A v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 18 November 2020
• Neutral Citation: [2020] IEHC 571
• Docket Number: [2018 No. 1055]
• Court: High Court
• Date: 18 November 2020

BETWEEN

S.A. (SOUTH AFRICA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IEHC 571

Richard Humphreys

[2018 No. 1055]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 18th day of November, 2020

1 In December, 2018, the Court of Appeal rejected the proposition that a student permission is a grant of settled status, and that deportation of a person in possession of such a permission requires a proportionality assessment under art. 8 of the ECHR (leaving aside for such purposes the inevitable possibility of exceptional circumstances): Rughoonauth v. Minister for Justice and Equality [2018] IECA 392 (Unreported, Court of Appeal, Peart J. (McGovern and Baker JJ. concurring), 5th December, 2018).

2 In June, 2019, the Supreme Court refused leave to appeal: Rughoonauth v. Minister for Justice and Equality [2019] IESCDET 124 (Unreported, Supreme Court, 13th June, 2019); Omrawoo v. The Minister for Justice and Equality [2019] IESCDET 155 (Unreported, Supreme Court, 25th June, 2019).

3 One year on, the present applicant seeks to re-run the point on comparable facts, on the basis of an academic distinction between the low-water-mark of the precise wording used in the particular decision as against the high-water-mark of some of the more general language used, obiter, by the Court of Appeal. Unfortunately, the point is not really any more appealing the second time around.

Facts

4 The applicant was born in Pakistan in 1971 and was a citizen of that country by birth. He moved to South Africa in 2003 and was granted South African citizenship in 2005 on foot of a marriage there. He states that this resulted in the loss of his Pakistani citizenship. He divorced later in 2005. In July 2013 he states that he converted to Christianity from Islam, which he says created a danger to him from the Muslim community in South Africa from which he had to flee.

5 He arrived in the State on 19th November, 2013 but did not apply for international protection at that time. Rather he sought and was granted a student permission which was valid for the period 23rd December, 2013 to 6th December, 2016. Only when he was told that the student permission would not be extended did he apply for international protection on 6th December, 2016. That application was refused by the IPO on 7th November, 2018, On 8th November, 2018 he was refused permission to remain by the Minister for Justice and Equality, which is the decision impugned in these proceedings.

6 On 4th December, 2018 he appealed the protection refusal to the IPAT.

7 The statement of grounds was filed on 14th December, 2018 the primary relief sought being an order of certiorari directed to the decision of the Minister of 8th November, 2018 refusing to grant permission to remain under s. 49(4)(b) of the International Protection Act 2015. I granted leave on 17th December, 2018.

8 On 13th May, 2019 the IPAT rejected the appeal. That decision was not challenged, but the Minister has undertaken not to carry out a review of the permission to remain decision pending the outcome of the proceedings. I have now received helpful submissions from Mr. Conor Power S.C. (with Mr. Anthony Hanrahan B.L.) for the applicant and from Mr. Alexander Caffrey B.L. for the respondent.

Ground A - failure to consider the correct basis for the applicant's presence in the State

9 Ground A contends that “the respondent erred in law in effectively treating the applicant as a person who had never been permitted to remain in the State other than pending an examination of his claim for protection when in fact the applicant had been a lawful long duration resident in the State on Stamp 2 student status for three of the five years he had been in the State and had acquired private life rights during this period which have not been considered. The respondent has erroneously applied the wrong test hearing the applicant's residence in the State as having at all times been precarious and thus requiring that exceptional circumstances be shown before Article S of the European Convention on Human Rights is considered to be engaged.”

10 There are unfortunately a number of misconceptions in this allegation. Pages 11-13 of the decision essentially hold that it was not accepted that any potential interference with the applicant's rights “will have consequences of such gravity as potentially to engage the operation of Article 8(1)” of the ECHR as applied in this context by the European Convention on Human Rights Act 2003, relying expressly on P.O. v. Minister for Justice and Equality [2015] IESC 64, [2015] 3 I.R. 164; and C.I. v. Minister for Justice, Equality and Law Reform [2015] IECA 192, [2015] 3 I.R. 385.

11 The context here is that the applicant's permissions were inherently transitory. A student permission is by definition time-limited because the whole premise of the scheme of student permissions is that the student is expected to leave the State at the conclusion of his or her studies. If a student permission were to be given in expectation of some kind of ongoing or even eventually permanent residence, then applicants would be subjected to vastly greater scrutiny. The inevitable restrictions on the student scheme would rapidly render it unworkable or at the least, significantly less effective. Just as the student permission is inherently temporary as indeed the Court of Appeal found in Rughoonauth (leaving aside exceptional circumstances), the temporary permission for the purposes of making an application for international protection is also inherently transitory. Neither give rise in normal circumstances to an expectation of settled status such as to require a proportionality assessment under art. 8 of the ECHR as incorporated in Irish law. A combination of two transitory permissions does not amount to a settled permission.

12 Thus, contrary to what is asserted by the applicant in ground A, there was no error in treating the applicant's residence in the State as having at all times been precarious and requiring that exceptional circumstances be shown before art. 8 of the ECHR would be considered to be engaged. Indeed, that is precisely the correct approach here.

13 The applicant may have allowed himself to become misled by the word “precarious”, which is to be construed not simply as a term in a dictionary, or a concept in Irish law to be fashioned without context, but in the sense in which it is used in the Strasbourg caselaw. In that context it means presence other than by way of settled status. And settled status means where the person has been the subject of a formal grant of permission to reside in the country - reside on an ongoing basis, as opposed to purely be present on a temporary basis. Thus, in Strasbourg parlance the term “precarious” or equivalent terms such as uncertain or non-settled encompasses a range of situations - both presence that is wholly unlawful and presence that is lawful, but inherently temporary or time-limited, such as the permission granted by operation of law for the making of a protection application or a visitor's visa or permission for some time-limited purpose such as a student permission. Essentially the “precarious” category is a residual category covering all situations where the person is not “settled” in the sense of being the recipient of a formal permission to reside in the country.

14 The other misconception in the ground as pleaded is that during a period of unsettled status the applicant “had acquired private life rights during this period which have not been considered.” That unfortunately is a misunderstanding of the logic of the Strasbourg caselaw in relation to the application of art. 8 of the ECHR to the context of removal decisions. I will discuss this in more detail below, but for present purposes it is sufficient to summarise the position by saying that the kind of family and private life rights that are intended to be protected by art. 8(1) are those acquired during an applicant's period of settled residence in a contracting party's territory, leaving aside the question of exceptional circumstances. The reason why a proportionality analysis is not required, save in such exceptional circumstances, for an unsettled migrant, is that an applicant is not permitted to assert under the heading of art. 8 such personal interests as might have accrued during a period of unlawful or otherwise temporary or precarious presence. Such interests simply do not constitute the sort of “rights” which art. 8(1) is intended to protect and, therefore, the question of a proportionality analysis does not arise. This hopefully will become clearer below when I discuss the Strasbourg caselaw more specifically.

Ground B - criticism of wording of the decision

15 Ground B contends that “[i]n circumstances where the Applicant was lawfully resident in the State on Stamp 2 student status for more than 3 years, the Respondent erred in law and acted unreasonably and irrationally in finding “no expectation was given to the applicant that he could form a private life in Ireland and therefore it is not open to him to seek to rely on Article 8 to circumvent the immigration rules which he would be normally subject to.””

16 A similar wording was upheld in F.Z. (Pakistan) v. Minister for Justice and Equality [2019] IEHC 368, [2019] 4 JIC 1223 (Unreported, High Court, 12th April, 2019), and I apply the same approach here. A presumption of validity attaches to administrative decisions (as discussed further below), so a court should read a decision as being valid rather than invalid if that interpretation is legitimately open. Taking the decision as a whole, it cannot be read as some form of utterly blanket rejection of the applicant's submissions, not least because the possibility of exceptional circumstances is adverted to, albeit in the context of a...