The Supreme Court has dismissed an appeal by MK, an Albanian national who came to Ireland as a 16-year-old, challenging the refusal of leave to remain on humanitarian grounds. The judgment was delivered by Chief Justice O’Donnell on 24 November 2022.
The case concerned a decision under section 49 of the International Protection Act 2015. MK’s applications for refugee status and subsidiary protection had been unsuccessful. His challenge focused on the Minister’s refusal of leave to remain, which he argued would disproportionately disrupt the private life he had built in Ireland and breach Article 8 of the European Convention on Human Rights and constitutional rights.
MK arrived in Ireland on 13 September 2016, lived with a foster family, attended school and later worked. He applied for international protection in June 2017. The Minister initially refused leave to remain in October 2018. After a review request, a further decision dated 25 November 2019 again refused it. The Minister’s analysis concluded that the impact on MK’s private life was not grave enough to engage Article 8.
The Supreme Court considered how the five-stage test from the House of Lords’ decision in Razgar should apply. Chief Justice O’Donnell said that refusal of leave to remain, or removal, would normally affect private life sufficiently to engage Article 8, even where a person’s residence was precarious. The question should generally be addressed through proportionality, at the fifth stage of the test, rather than treating the gravity of the impact as a separate threshold at stage two.
However, the Chief Justice concluded that the Minister had considered the substance of the relevant question: whether there were exceptional circumstances beyond the ordinary disruption of leaving Ireland that could outweigh the State’s interest in immigration control. He said that, on the facts before the Minister, the same issue had been assessed, though at the wrong stage. The sequencing error therefore did not make the decision invalid, and quashing it would serve no purpose.
The Chief Justice did not find an Article 8 breach and said the constitutional claim could not lead to a different result on these facts. He noted that later developments could be put to the Minister in a new application. He would dismiss the appeal. The judgment also records that Justice MacMenamin disagreed that the Minister’s decision should stand; the other judges’ separate judgments are not included in this source extract. The appeal was dismissed.