The High Court quashed the Minister for Justice and Equality’s refusal of a Bangladeshi chef’s application for long-term residency, ruling that his conviction for driving without insurance could not lawfully be the sole reason for refusing it under the statutory scheme.
In a judgment delivered on 24 January 2014, Mr Justice McDermott set aside both the original refusal, issued on 3 November 2011, and the Minister’s review decision of 23 November 2011. The court did not grant the residency permission itself. The applicant’s existing permission to remain and work in Ireland was unaffected by the refusal and remained in place.
The applicant had worked in Ireland as a chef since February 2005 under work permits and later working visa conditions. In March 2010, he applied for long-term residency, which would allow him to live and work in Ireland for five years without being tied to a particular employer. While that application was pending, he was convicted at Sligo District Court of driving without insurance and fined €300. He told immigration officials about the conviction and paid the fine.
The applicant’s solicitors said he had been driving a friend’s car and believed he was insured to drive it. He pleaded guilty after learning he was not covered because he was not a named driver. They also submitted that he had worked in Ireland for years without other difficulties and that refusing the application on character grounds would be disproportionate. The Minister reviewed the refusal after receiving those submissions but did not change the decision.
The judge found that the long-term residency scheme required an assessment of an applicant’s good character, but that the Minister’s discretion remained subject to section 4 of the Immigration Act 2004. Under section 4(3), the court said, a conviction could ground refusal on that basis only where the offence carried a potential prison sentence of at least 12 months. Driving without insurance carried a maximum prison term of six months.
The judgment referred to a letter in another case and the decision in this one as evidence of a policy of refusing applications because of convictions for driving without insurance. The Minister had not explained or refuted the policy. The judge concluded that refusing this application solely because of the conviction unlawfully restricted the Minister’s discretion and conflicted with the statutory framework.
The court rejected the applicant’s separate arguments that his explanation and the consequences of refusal had not been considered. It also found that proportionality was not relevant on the facts because the refusal did not affect a fundamental right or his existing permission to remain. The order was limited to quashing the two decisions.