The High Court quashed the Minister for Justice and Equality’s refusal of a Mauritian woman’s application to change her immigration permission from student status to Stamp 4. It remitted the application for fresh consideration, finding that the decision-maker had to consider any constitutional or Convention rights engaged by the decision and that criteria for this type of application had not been published.
The judicial review challenged a decision of 5 November 2012. The woman had arrived in Ireland in 2006 to study and had lived there with her daughters, including her minor daughter, a co-applicant. Her student permission expired in June 2012. She applied for Stamp 4 permission under section 4(7) of the Immigration Act 2004, which would have allowed her to work without an employment permit. The Minister refused that application but gave her permission to remain until 19 December 2012 to finalise her affairs, directing her to leave unless she secured another form of permission.
The applicants argued that the Minister had to consider their family and private life rights under Article 8 of the European Convention on Human Rights and the Constitution. The Minister’s position was that those matters could be considered later, if a deportation process began. The High Court held that where a section 4(7) decision engages an applicant’s constitutional or Convention rights, the Minister must consider them at that stage; later consideration in a deportation process does not remove that obligation. The judge found the applicants’ Article 8 rights were engaged because the refusal required them to leave by a specified date, potentially affecting their family life. The court did not decide that the applicants had an entitlement to remain or dictate the weight the Minister should give relevant considerations.
The court also upheld the challenge concerning an unpublished policy. Although the Minister had published guidance on the student scheme, the judgment found no published criteria explaining how applications for Stamp 4 permission from people in the woman’s position as a timed-out student would be assessed. The judge found this failed to meet the requirements of natural and constitutional justice and basic procedural fairness.
A separate challenge concerned the refusal letter’s reference to a “Chinese re-entry stamp”, although the applicant was Mauritian. The court treated this as a typographical error and found no evidence it materially affected the decision, so it rejected that ground.
The court ordered certiorari, quashing the 5 November 2012 decision, and remitted the application to the Minister for fresh consideration. It declined to make an order of mandamus compelling reconsideration.