W.L.C v The Minister for Justice

JurisdictionIreland
JudgeMs. Justice Niamh Hyland
Judgment Date28 January 2022
Neutral Citation[2022] IEHC 48
Docket NumberRECORD NO. 2020/840JR
Year2022
CourtHigh Court
Between
W.L.C
Applicant
and
The Minister for Justice
Respondent

[2022] IEHC 48

RECORD NO. 2020/840JR

THE HIGH COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered on 28 January 2022

Introduction
1

This is an audacious application. To succeed on the principal grounds raised in this challenge, the applicant must persuade me that I ought to ignore a decision of the Court of Appeal, Rughoonauth v Minister for Justice and Equality [2018] IECA 392, a determination of the Supreme Court, Rughoonauth v Minister for Justice and Equality [2019] IESCDET 124 (whereby it refused leave to appeal the decision of the Court of Appeal), a decision of the High Court in SA v The Minister for Justice and Equality [2020] IEHC 571, and a further decision of the High Court in MK v The Minister for Justice and Equality [2021] IEHC 275. In short, I consider that, not only am I not entitled to ignore the determination of the Supreme Court, the decision of the Court of Appeal and the two High Court decisions (unless, in the case of the High Court, the Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189 criteria are satisfied), but that there is no reason in principle for ignoring those decisions. They correctly reflect the jurisprudence of the European Court of Human Rights (“the ECtHR”) in respect of the application of Article 8 of the European Convention on Human Rights (“the ECHR”) to immigration and deportation decisions. In seeking to argue they are wrongly decided, the applicant has failed to correctly interpret the Supreme Court decision of Luximon v Minister for Justice and Equality; Balchand v Minister for Justice and Equality [2018] 2 IR 542.

Factual background
2

The applicant was born on 13 December 1983 in Malaysia and is a Malaysian national. She arrived in Ireland and registered as a student on or about 26 September 2012. She was granted Stamp 2 permission to reside in the State on student conditions, which permission was extended from time to time until its expiration on 30 September 2019. Ultimately, she graduated with a Bachelor of Business (Honours) degree from the College of Computing Technology.

3

The applicant lived with her sister and their family in Malaysia whilst growing up. The applicant's sister moved to Ireland before her and gave birth to her son on 17 December 2003. Since moving to Ireland in 2012, the applicant has at all times lived either with, or in close proximity to her sister and nephew, both of whom are Irish citizens.

4

On 30 October 2019, Abbey Law, solicitors for the applicant, made an application for permission for the applicant to remain in the State pursuant to s.4 of the Immigration Act 2004 and/or the respondent's executive discretion, and enclosed supporting documents including the applicant's education records, employment records, her current and expired passports, evidence of her financial situation and health insurance, and evidence of her close relationship with her sister and nephew.

5

By letter dated 14 October 2020, the respondent refused the application to vary the applicant's permission to remain in the State, noting that she was not eligible for Stamp 1G permission as she had exceeded the 7 year limit on residence in the Student Guidelines. In respect of the leave to remain application, the Minster referred to the test in R (Razgar) v Home Secretary [2004] 2 AC 368 and held that given that the applicant's status has at all times been precarious, it is not accepted that any potential interference with her private life rights would have consequences of such gravity as to engage the operation of Article 8 and therefore the refusal was not in breach of her right to respect for private life. The Minister further concluded that a refusal of permission to remain did not constitute an interference with the right to respect for family life, on the basis that no evidence had been submitted to suggest that the applicant's relationship with her sister or nephew extended beyond normal emotional ties.

Procedural history
6

Leave to challenge the Minister's refusal to grant permission to remain by way of judicial review was granted on 23 November 2020.

Alleged breach of article 8 by the minister
7

The correct approach by the Minister when making a decision in respect of permission to remain insofar as Article 8 is concerned is identified in the UK Court of Appeal decision of Razgar. The Minister identified in her decision that the first test in that case was met but concluded that the applicant had not overcome the second test, i.e. that the applicant had failed to establish the gravity of the infringement of the Article 8 rights with the consequence that no proportionality review was required.

8

The applicant essentially makes two arguments to support her contention that this approach was misconceived. The first is that Rughoonauth was erroneously decided insofar as it does not exclude students from being treated as persons whose status is precarious. It is argued that I should instead adopt the approach of the Supreme Court in Luximon, which, on the applicant's case, requires that students not be treated as persons whose status is precarious.

9

In my view it is not open to the applicant to make that argument. The decision of the Court of Appeal in Rughoonauth is binding upon me. Moreover, the Supreme Court has declined to grant leave to appeal against the decision of Rughoonauth. Rughoonauth makes it clear that it is not unlawful to conclude that a person who lawfully resides on a temporary and time-limited basis, as the applicant did in this case, has a precarious status such that Article 8 is not sufficiently engaged in the case so as to necessitate a proportionality review. As Humphreys J. found in SA (discussed below), the essential ratio of Rughoonauth may be found at paragraph 71 of the decision of Peart J. i.e.

“As I have said, it is highly unlikely that a person here on a temporary student permission could acquire the same level of private life rights as a person to whom the description of ‘settled migrant’ might normally be attached, given the certain knowledge that the student has from the outset known that their presence in the State is temporary only and for a limited and defined purpose. In my view some exceptional circumstances would have to arise for the status of ‘settled migrant’ to be applied. But it is wrong to rule out on an a priori basis the possibility that a migrant student can never be properly considered to be a ‘settled migrant’ in the sense that the phrase has come to be understood, and who as a result is considered to be entitled to a proportionality assessment under Article 8.2 ECHR.”

10

The principles governing the application of Article 8 in an immigration context have been identified in some considerable detail in the judgments referred to in the first paragraph of this judgment. In SA, Humphreys J. noted that the Court of Appeal in Rughoonauth had 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 Article 8 of the ECHR (leaving aside the inevitable possibility of exceptional circumstances). He observed that the Supreme Court had refused leave to appeal against the decision of the Court of Appeal in Rughoonauth.

11

Having carried out a detailed review of the case law of the ECtHR on Article 8 in the context of deportation and expulsion decisions, Humphreys J. went on to summarise the principles in relation to the ECtHR case law relevant to reliance upon Article 8 i.e. the right to respect for private or family life, insofar as they are applicable to immigration cases.

12

The detailed summary of those principles may be found at paragraph 35 of S.A. but in short, Humphreys J. notes that settled migrants, as that term is used in the ECtHR case law, means people who have already been formally granted a right of residence in a host country that is not temporary or provisional in nature. Persons who have a lawful permission that is temporary and provisional and falls short of a formal grant of a right of residence may be described interchangeably as precarious, unsettled, non-settled, insecure or uncertain in their status. Where private and family life interests arise at a time when an applicant's right to stay is precarious in the Strasbourg sense, they cannot be taken into consideration in the Court's examination (apart from in exceptional circumstances). That means no proportionality analysis is required for the removal of non-settled migrants in the absence of exceptional circumstances. That follows from the applicant being unable to rely on such asserted interests or rights built up during a period of precariousness. The obligation on national authorities to conduct a proportionality analysis only arises under the ECHR where the person had settled status or where exceptional circumstances apply.

13

In MK, Burns J. again reviewed in some considerable detail the jurisprudence of the Irish courts regarding the engagement of Article 8, and considered the decisions of CI v Minister for Justice [2015] 3 IR 385, P.O. & Anor v Minister for Justice and Equality & Ors [2015] 3 IR 164, the decision of the Court of Appeal in Rughoonauth, the Supreme Court determination in Rughoonauth and SA referred to above. I do not intend to replicate that review but, having carefully considered the case law referred to by Burns J., I respectfully adopt the conclusion that she identifies at the end of her review as follows:

“The jurisprudence of the Irish Courts is extremely well settled to the effect that a migrant with a non-settled or precarious residential status cannot assert Article 8 rights unless exceptional circumstances arise. Accordingly, a proportionality assessment does not arise” (paragraph 27).

14

I should add that even absent this...

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