The High Court dismissed two judicial review proceedings brought by people whose applications for permission to remain in Ireland were not considered under section 4 of the Immigration Act 2004 because they were unlawfully present in the State.
In a judgment delivered on 1 July 2019, Mr Justice Richard Humphreys ruled that the section 4 applications were misconceived. He said the section was not a standalone route for granting permission to anyone unlawfully present. The court also held that the applicants had not identified any specific alternative scheme in their applications, and the Minister for Justice and Equality was not obliged to consider a scheme that had not been specifically sought.
One proceeding was brought by Amardeep Singh, Una Kumar and two minor applicants, Rowan Kumar and Maya Kumar, who sued through their mother and next friend. Singh had arrived from India in 2014 on student permission, which expired in September 2015. He applied for permission to remain in August 2016. The Minister refused to deal with the application under section 4 in August 2017 and proposed making a deportation order. The judge noted that the proposed order had not been progressed, although there was nothing legally preventing the Minister from doing so.
The other proceeding was brought by Yunlong Li. He arrived from China in 2001 on student permission, which expired in December 2004. After his 2015 application for permission to remain was not considered under section 4, the Minister proposed a deportation order in December 2016. Li sought to challenge that proposal and to require the Minister to consider his application. The judge held that a challenge to a mere proposal was generally inappropriate, absent exceptional circumstances such as an ultra vires act or bad faith. He said the usual course was to respond to the proposal through the deportation process.
The court refused the applicants’ requests for discovery of documents about other applicants’ cases, describing them as a fishing expedition. It also refused cross-examination of two officials, finding the alleged factual conflict insufficiently developed and the proposed inquiry potentially irrelevant.
The judge said the applicants could raise their claims during the process for responding to a deportation proposal. The proceedings were dismissed. The judgment does not state that any deportation order was made.