The Supreme Court dismissed the Minister for Justice’s appeals concerning immigration permission decisions involving the Luximon and Balchand families. It upheld the Court of Appeal’s orders quashing the decisions, holding that the Minister had no power under section 4(7) of the Immigration Act 2004 to direct the families to leave Ireland and should have considered whether their Article 8 private and family life rights were engaged.
The judgment, delivered by Mr Justice John MacMenamin on 24 April 2018, concerned applications to vary or renew permissions that had been refused after a 2011 change to the State’s educational scheme for non-EEA students. The Minister argued that Article 8 rights could be considered later, at a possible deportation stage under the Immigration Act 1999.
The families had entered Ireland lawfully in 2006 under an educational scheme that allowed study and part-time work. By the time of the relevant decisions, the adults had lived in Ireland for years, and family members had joined them. The judgment described the Luximon family as having a home in Dublin, with Ms Luximon working in a dental practice. The Balchand family included Mr Balchand’s wife, Shandrika Gopee, and their son, who was in primary education. The adults in that family worked in hospitality and catering.
The court found that the Minister’s decision letters required the applicants to leave unless they obtained another immigration permission. It rejected the argument that section 4(7) could be read together with the deportation provisions in the 1999 Act to support that direction. The court said the requirement could put applicants in the position of either leaving before their rights were assessed or remaining without permission and risking a deportation process.
The court also held that, in the circumstances of these appeals, the Minister’s decisions under section 4(7) were a State function that had to be carried out compatibly with the European Convention on Human Rights. The applicants’ long lawful residence and family circumstances meant their Article 8 rights had to be considered at the permission decision stage, while they remained in Ireland.
The ruling was limited. It did not decide that either family was entitled to remain, or determine the outcome or weight of any Article 8 assessment. The Minister may set time limits and refuse permission where warranted, and the judgment said its conclusions were confined to the facts of these appeals.