The Court of Appeal (Finlay Geoghegan J, Peart J & Hogan J) delivered an important judgement on 14 December 2016 in the case of Luximon & Ors -v- The Minister for Justice & Equality  IECA 382 (and in the related case of Balchand & Ors -v- The Minister for Justice and Equality  IECA 383), concerning the question of whether, in determining an application for permission to remain by a non-EEA national, made pursuant to section 4(7) of the Immigration Act 2004, the Minister is obliged to consider the applicant’s rights to the respect of his private & family life as guaranteed under Article 40.3 of the Constitution and Article 8 of the ECHR. The Court of Appeal held that the High Court Judgement of Barr J (20 March 2015) IEHC  227 was correct in finding that there was such an obligation.
The applicant was a citizen of Mauritius. The second applicant was her daughter, also a citizen of Mauritius. Ms Luximon arrived in the State in July 2006 for the purpose of pursuing a course of study. She was granted permission to remain on “Stamp 2” conditions. Her permission to remain was renewed from time to time and the last such permission expired on 26 June 2012. In March 2012 she unscucessfully applied for a Green Card Employment Permit. In October 2012 she applied for the renewal of her permission to remain in the State pursuant to section 4(7) of the Immigration Act 2004 and for a change of her immigration status to “Stamp 4” conditions. In her application, Ms Luximon made a number of submissions relating to her private and family life in the State and submitted that a refusal of her application would be in breach of her right to the respect of her private and family life as guaranteed by Article 8 of the European Convention on Human Rights.
The Minister refused the application on 5 November 2012. The reasons given related primarily to the fact that she had resided in the State as a student for over seven years, which is the maximum period allowed under the “Student Immigration Rules”. The decision made no reference to the rights of Ms Luximon and her daughters pursuant to Article 8 ECHR and no reference at all to the position of her minor daughter.
Ms Luximon sought to challenge the Minister’s decision by way of judicial review in the High Court on the basis inter alia that the Minister had acted in breach of its obligations under section 3 of the European Convention on Human Rights Act 2003. It was also submitted that the Minister had acted unlawfully in failing to publish criteria applicable under section 4(7) of the 2004 Act.
The Minister’s position was that, while an obligation to consider ECHR rights exists in the context of applications for leave to remain in the State made pursuant to section 3 of the Immigration Act 1999 (i.e. the procedure to consider whether or not a deportation order ought to be made), no such obligation exists when determining an application for permission to remain under s. 4(7) of the 2004 Act.
High Court Judgement
By order of the High Court (McDermott J) of the 14 February 2013, the applicants were granted leave to apply for an order of ceriorari of the Minister’s decision of the 5th November 2012. In a judgement of the 20 March 2015 the High Court ( IEHC 227, Barr J) granted an order of certiorari quashing the decision of the Minister dated 5th November 2012, refusing Ms Luximon’s application for permission to remain in the State pursuant to section 4(7) of the 2004 Act and for a “change of status”. At para 173 the trial judge held:-
“173. In conclusion, … the court is satisfied that there is an obligation on the Minister, when considering an application pursuant to s. 4(7) of the Immigration Act 2004, to have regard to any constitutional and/or Convention rights of an applicant that are engaged by the decision. Moreover, the court would observe that once the Minister has taken into account the relevant considerations, the weight to be attached to each of them is properly a matter for the Minister in her discretion, subject to the principle of proportionality.”
The trial judge, furthermore, upheld (at para 22) the contention that the Minister was in breach of fair procedures in not publishing her policy as to the criteria to be applied by her in considering an application for a change of immigration status to stamp 4 conditions from a person such as Ms Luximon who was a “timed-out” non-EEA student pursuant to section 4(7) of the 2004 Act.
The Minister applied for a certificate to appeal and, in granting the certificate, the trial judge certified that the High Court decision involved the following two points of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal be taken:-
- Is the Minister obliged to consider rights alleged to arise under the European Convention on Human Rights Act 2003 in applications made under section 4(7) of the Immigration Act 2004, by or on behalf of persons whose permission to be in the State has expired where such rights must be considered by the Minister where the Minister is considering whether or not to make a deportation order in respect of the person concerned in the deportation process under section 3 of the Immigration Act 1999?
- Is there an obligation imposed in law on the Minister to publish any criteria applicable under section 4(7) to a person in a position such as that of Ms Luximon’s i.e. a timed-out non-EA student without any current resident permission at the time of application who seeks permission to change their immigration status?
Court of Appeal Judgment
Re ECHR Act 2003 & Article 8 ECHR
In refusing the Minister’s appeal, the Court of Appeal held that the Minister, in determining applications for permission to remain under section 4(7) of the 2004 Act, must consider the possible interference with Article 8 ECHR rights:-
“38. […] The consequences for a non national such as Ms. Luximon of a refusal to renew a permission to be in the State is that she is then unlawfully present in the State (s. 5(1) and (2) of the 2004 Act). If she wishes to abide by the law of the State then she must leave the State unless as indicated in the letter of the 5th November, 2012, she secured another form of immigration permission such as a work permit or green card. Those avenues had already been explored and were not available to Ms. Luximon or had already been refused.
39. If, thereafter, she were to remain in the State then, in addition to being unlawfully present in the State, she faced the further difficulty that it was expressly stated that it was intended to issue a notification proposing to deport her under s. 3(4) of the Immigration Act 1999. She would then be a person in respect of whom the Minister might make an order of deportation pursuant to s. 3(2) of the 1999 Act.
40. Ms. Luximon is a person who entered the State lawfully. She obtained a permission to be and remain in the State and with the exception of a short period of time (Which the Minister has not relied upon in making her decision) she was at all times lawfully present in the State. If she wishes to continue to behave lawfully, then she must leave the State by reason of the Minister’s refusal to renew her permission to be in the State.
41. The stark submission made on behalf of the Minister is that there is no obligation to consider in any way family or private life rights which Ms. Luximon and her daughter allege the State is bound to respect pursuant to Article 8 ECHR prior to reaching a decision which will require her to leave the State if she wishes to continue to act lawfully in relation to her immigration status. Further that contention is made in a context that Ms. Luximon had lawfully lived in the State pursuant to s. 4 permission for approximately 7 years at the time of the decision and the Minister would consider such alleged rights if it was proposed to deport the applicants.
42. I am of the view that the trial judge was correct in deciding that such refusal by the Minister to consider matters (which she accepts must be considered prior to the making of a deportation order) is not consistent with her obligations in exercising the discretion conferred on her by s. 4(7) of the 2004 Act.
43. First, it cannot be disputed that in accordance with the judgments of the Supreme Court in East Donegal Co-Operative Livestock MArt Limited v. Attorney General  I.R. 317 and in The State (Lynch) v. Cooney  I.R. 337, that the Minister must exercise the discretion given her by s. 4(7) in a manner which would be in conformity with the Constitution. Accordingly, where an applicant for a renewal of permission under s. 4(7) identified a relevant right which it is contended the applicant holds pursuant to the Constitution or protected by the Constitution then the Minister is obliged to exercise her discretion in a manner consistent with respecting and upholding such right.
44. For the reasons already set out I do not propose addressing further the Minister’s obligations pursuant to constitutional principles in respect of the applicants herein. No reliance was placed on the Constitution in the letter of application.
45. The Minister’s obligations in relation to the rights expressly asserted in reliance on Article 8 of the ECHR are statutory obligations imposed by s. 3(1) of the European Convention on Human Rights Act 2003, (the “2003 Act”) which provides:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
46. The Minister is an organ of the State in accordance with the definitions in s. 1 of the 2003 Act. Further, pursuant to s. 2 of the 2003 Act the Court must interpret and apply any statutory provision including s. 4 of the 2004 Act “insofar as possible” in a manner compatible with the State’s obligations under the Convention. There is nothing in s. 4 of the 2004 Act which precludes the Court from interpreting or the Minister from exercising the statutory powers conferred by it in a manner compatible with the State’s obligations under Article 8 of the Convention. Hence the Minister in exercising the discretion given her by s. 4(7) must do so inter alia, in a manner compatible with the State’s obligations under Article 8 of the Convention. This 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 democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
47. Whatever may be the position in relation to the assertion of rights protected by the Constitution by a non-national, it is not in dispute that a non national in the State has a right to respect for his private and family life by the State pursuant to the 2003 Act and Article 8(1) ECHR. The Minister correctly accepts that prior to deportation of a non national, there is an obligation to consider such rights.
59. I am in agreement with the trial judge that a proposed decision not to renew a permission pursuant to s. 4(7) of a person such as Ms. Luximon who had been in the State lawfully pursuant to a s. 4 permission for several years has the potential to be an interference with her right to respect for private life and family right such that it is capable of engaging Article 8 of ECHR. The question as to whether or not on the particular facts of the application, a decision not to renew the permission would have consequences of such gravity for Ms. Luximon and her daughter in relation to their alleged rights to family or private life such that Article 8 is engaged in the sense that the term is used in the Razgar, C.I. and Dos Santos judgments is a matter for determination by the Minister subject only to judicial review by the courts.
60. Another way of putting my conclusion is that the obligation of the Minister pursuant to s. 3 of the 2003 Act in relation to Article 8 ECHR in proposing not to renew a permission pursuant to s. 4(7) of the 2004 Act, are similar to the obligations which she accepts exist where there is a proposal to deport save of course that a different decision is under consideration.”
Re Obligation to Publish Criteria for Determining s. 4(7) Permission to Remain Applications by Timed-Out Non-EEA Students
The Court, however, ruled that the High Court trial judge was wrong in finding that the Minister had an obligation to publish a policy or criteria in relation to permission to remain applications made pursuant to section 4(7) of the 2004 Act in respect of timed-out non-EEA students:-
“62. The trial judge was in error in his conclusion that the Minister was in breach of fair procedures or natural and constitutional justice in not publishing a policy or criteria according to which she would decide an application from a timed out non-EEA student pursuant to s. 4(7) of the 2004 Act for change of immigration status to “stamp 4″ conditions. […] S. 4(7) grants a discretionary power to the Minister which must be exercised in accordance wit the principles set out in relation to the individual facts and circumstances advanced by the applicant. A timed out non-EEA student has no right, as such, to be granted stamp 4 status. The general policy in relation to non-EEA students has been published since 2011. It indicates certain paths according to which such persons may attain long term residency in the State. Ms. Luximon was unfortunate in that she was unable to avail of any of those. In making an application under s. 4(7), as she is entitled to do, she is seeking to have the Minister exercise in her favour a statutory discretion given by the Oireachtas. That application is based upon her individual facts and circumstances which the Minister must consider and decide upon in accordance with the constitutional principles […] and pursuant to s. 3 of the 2003 Act in a manner consistent with the State’s obligations under ECHR.”