The High Court has quashed a decision refusing a Colombian national permission to change his immigration status and sent the matter back to the Minister for Justice for a proportionality assessment under Article 8 of the European Convention on Human Rights (ECHR).
In a judgment delivered on 6 October 2021, Ms Justice Tara Burns found that the Minister had erred in deciding that the man had not established family life with his mother beyond normal emotional ties. The court also found that the Minister had erred in considering his private life rights.
The man entered Ireland on a student visa in June 2012. His mother had lived in Ireland since 2001. He had received successive permissions to remain, most recently on Stamp 1 conditions until November 2019. After he sought Stamp 4 permission, or Stamp 1 permission without a work permit, the Minister refused his application in January 2020 and notified him of a proposal to deport him. He had also received exceptional, short-term permissions to allow him to seek work, but had not secured employment.
The judgment records that he had been left in Colombia in the care of his maternal grandmother and uncle when his mother came to Ireland. He told his mother in 2019 that his uncle had sexually abused him over a number of years. He was diagnosed with psychosis after a hospital admission in 2016 and, according to a medical report cited in the judgment, required ongoing psychiatric management. He completed a business studies degree in 2019, remained financially dependent on his mother, and had no other family in Colombia apart from the uncle and an aunt.
The Minister’s refusal decision said that a health service operated in Colombia and that the man had lived apart from his mother for at least 11 years. It concluded that exceptional circumstances engaging his private life rights had not been established and that his relationship with his mother was no more than normal emotional ties. The Minister also relied on the student-visa time limit and the public interest in maintaining the immigration system.
The judge said the decision had considered the different strands of his representations separately, without assessing their combined effect if he were returned to Colombia. She found the particular history of abuse, his reunion with his mother and his mental health needs requiring family support made the circumstances exceptional. The court rejected the argument that the issues should wait for the deportation process, saying the Minister was obliged to consider whether Article 8 rights were engaged in this application.
The court granted the relief sought, quashed the refusal and remitted the matter to the Minister for a proportionality assessment under Article 8(2). It also ordered the Minister to pay the applicant’s costs, to be adjudicated if the parties could not agree. The judgment did not itself grant permission to remain.