EL v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Miriam O'Regan
• Judgment Date: 12 November 2024
• Neutral Citation: [2024] IEHC 647
• Court: High Court
• Docket Number: [Record No. 2023/1116JR]

Between

EL

Applicant

and

The Minister for Justice

Respondent

[2024] IEHC 647

[Record No. 2023/1116JR]

THE HIGH COURT

JUDICIAL REVIEW

Permission to remain – Judicial review – International protection – Applicant seeking permission to remain in the State pursuant to the provisions of the Regularisation of Long Term Undocumented Migrants Scheme – Whether the respondent fettered her discretion by failing to consider granting permission to the applicant

Facts: The applicant, an Albanian national, came to Ireland in April 2017. On 19 June 2017, the applicant applied for international protection which was refused on 27 June 2019. Between the period of the application for international protection and the refusal thereof the applicant had permission to remain in Ireland pursuant to the provisions of s. 16 of the International Protection Act 2015. Following the refusal aforesaid a deportation order was made against the applicant on 31 July 2019. In February 2022, the applicant applied for permission to remain in the State pursuant to the provisions of the Regularisation of Long Term Undocumented Migrants Scheme. The main strand of the scheme came into effect on 31 January 2022. According to the provisions thereof the eligibility requirement was that at the date of commencement of the scheme the applicant should be in the State for a period of at least four years without permission. On 14 September 2022 the applicant was refused permission to remain and subsequently an appeal was lodged on 20 September 2022. The appeal decision of 29 June 2023 was to uphold the refusal of 14 September 2022. On 6 November 2023, the applicant secured leave to seek to quash the appeal decision of 29 June 2023. The application was based on a statement of grounds of 5 October 2023.The legal grounds relied on in the statement of grounds were said to be: (1) the computation of the four year period was irrational; (2) no rights are bestowed on a person holding a s. 16 permission; (3) the applicant behaved in compliance with the laws of the State and therefore it was an illogical approach for the respondent, the Minister for Justice, to allow a person who has been illegal in the State and failing to engage with the authorities to be in an advantageous position relative to a person such as the applicant who engaged in an open manner; (4) the approach of the scheme is arbitrary and/or disproportionate and/or unlawfully discriminates without objective justification contrary to Article 40.1 of the Constitution; and (5) the respondent fettered her discretion by failing in the decision to consider granting permission to the applicant notwithstanding that there had not been strict compliance with the terms of the scheme.

Held by the High Court (O’Regan J) that the decision vis-à-vis discretion did not amount to a fettering of discretion given the only argument placed before the respondent to exercise discretion was effectively in the context of a scheme to disapply that scheme without identifying any further justification for doing so merely the disagreement of the applicant with the respondent’s view of the implications of a s. 16 permission. In all of the circumstances, O’Regan J held that the applicant had not discharged the onus on him to either quash the decision made by the respondent in his application or otherwise demonstrate that strand one of the scheme is arbitrary, capricious or irrational or disproportionate and discriminates against the applicant.

O’Regan J refused the relief claimed in the proceedings.

Relief refused.

JUDGMENT ofMs Justice Miriam O'Regandelivered on 12 November 2024

1. Introduction

1.1 The applicant is an Albanian national born on 1 July 1997 and came to Ireland in April 2017. On 19 June 2017 the applicant applied for international protection which was refused on 27 June 2019. Between the period of the application for international protection and the refusal thereof the applicant had permission to remain in Ireland pursuant to the provisions of s.16 of the International Protection Act 2015 (‘section 16’). Following the refusal aforesaid a deportation order was made against the applicant on 31 July 2019.

1.2 In February 2022 the applicant applied for permission to remain in the State pursuant to the provisions of the Regularisation of Long Term Undocumented Migrants Scheme (‘the scheme’). The main strand of this scheme came into effect on 31 January 2022. According to the provisions thereof the eligibility requirement was that at the date of commencement of the scheme the applicant should be in the State for a period of at least four years without permission.

1.3 On 14 September 2022 the application was refused permission to remain and subsequently an appeal was lodged on 20 September 2022. The appeal decision of 29 June 2023 was to uphold the refusal of 14 September 2022.

1.4 On 6 November 2023 the applicant secured leave to seek to quash the appeal decision of 29 June 2023. The application is based on a statement of grounds of 5 October 2023.

1.5 It is noted that the intention of the scheme would only apply to unlawful migrants in the State for a continuous period of four years or more on 31 January 2022. The second strand opened on 7 February 2022 and this applies to people with extant claims for international protection awaiting a decision for two years or more as of 7 February 2022.

2. Grounds

2. The legal grounds relied on in the statement of grounds are said to be:-

2.1 The computation of the four year period was irrational. In this regard it is said that the applicant had by the relevant date been in the State and had no permission to remain when he applied under the scheme. However, the Minister discounted the period for which the applicant had s.16 permission to remain. In this regard the applicant states that there were two iterations involved in the relevant scheme and the applicant was ineligible under the second strand. It is said that the Minister clearly took the view that in strand two the period for which a s.16 permission was available was not counted as lawful residence on the basis that otherwise the second stage would be futile. It is argued that having the s.16 permission as counting for lawful residence in the first strand but not the second strand is an irrational approach.

It is noted that there is no provision in the Scheme, nor does the applicant attempt to identify such a provision, to the effect s.16 permission is not a permission for the purpose of Strand 2 of the Scheme.

2.2 It is argued that no rights are bestowed on a person holding a s.16 permission (also referred to as a Temporary Residence Certificate (“TRC”)). It is not sufficient as a reckonable period for the purpose of citizenship and it is further said that it is not a permission “in and of itself” allowing a person access the labour market. It is said to be simply a permission enabling the person to remain physically present in the State.

2.3 It is said that the applicant behaved in compliance with the laws of the State and therefore it is an illogical approach for the Minister to allow a person who has been illegal in the State and failing to engage with the authorities to be in an advantageous position relative to a person such as the applicant who engaged in an open manner. It is said the approach taken by the Minister results in an absurd outcome whereby unlawful behaviour is rewarded and people who engage with the State are punished or treated less favourably than the unlawful migrant.

There is no element of punishment suffered by the applicant under the scheme or by reason of being ineligible (para. 28 and 29 of the uncontroverted affidavit of Mary Kelly of 11 June 2024).

2.4 It is said that the approach of the scheme is arbitrary and/or disproportionate and/or unlawfully discriminates without objective justification contrary to Article 40.1 of the Constitution. In this regard the comparator for the purposes of the discrimination claim is said to be a person who has been in the State for the same period of time but who did not seek international protection or engage with the State authorities in any way. It is said that this discrimination is arbitrary or capricious or otherwise not reasonably capable of supporting the selection or classification identified in the scheme when objectively viewed in the light of the social function involved. It is said that by excluding the applicant from the scheme without objective and reasonable relationship of proportionality between the means employed and the aim sought to be realised by the scheme is unreasonable and/or irrational and/or disproportionate.

2.5 It is said that the respondent fettered her discretion by failing in the decision to consider granting permission to the applicant notwithstanding that there had not been strict compliance with the terms of the scheme.

Applicant's Submissions.

3. Discretion

3.1 In written submissions the applicant argues, without evidence, that there is a large number of undocumented migrants in the State without permission some of whom engage in employment although do not have permission to do so. The scheme would grant permission to them and enable them to work lawfully together with affording them a Stamp 4 permission which ultimately would be a pathway to citizenship.

The applicant argues that the respondent has an executive discretion to grant permission to persons to remain in the State including in the context of an ex gratia scheme such as the within scheme. Reliance is placed on Bode v Minister for Justice[2008] 3 IR 663 and Pok Sun & Shun v Ireland[1986] ILRM 593.

3.2 The exclusion of s.16 permission holders in the scheme is said to be arbitrary. Although in Bode at para. 25 the Court indicated that the applicant still retained all rights under the formal procedures, it is said that this refers to s.3 of the Immigration Act 1999, however, the applicant...