The High Court has refused Dhanwantee Bundhooa leave to appeal an earlier judgment concerning an application to renew or extend an expired immigration permission.
In a judgment delivered on 5 March 2019, Mr Justice Max Barrett said the proposed appeal points did not arise from the earlier decision in Bundhooa v. Minister for Justice and Equality [2018] IEHC 756. The court also found that the decision did not involve a point of law of exceptional public importance. It therefore declined leave without considering whether an appeal would be desirable in the public interest.
The first proposed point asked whether a person whose permission to remain had expired, after being granted under section 4 of the Immigration Act 2004, could apply for permission to remain. The judge said the earlier case addressed the narrower question of whether a person could seek renewal or extension of a non-extant section 4 permission where an earlier permission had been obtained through fraud. He found the proposed question blurred distinct statutory provisions and ministerial discretion, and fell outside the earlier judgment’s scope.
The second proposed point asked whether the Minister was obliged to consider an application for permission to remain under residual executive discretion where the application referred only to section 4. The judge said executive discretion was not part of the earlier proceedings and leave had not been granted on that point. A reference to discretion in the earlier judgment was an obiter observation, he said.
At the leave hearing, Bundhooa relied on other decisions, including Luximon and Sulaimon. The judge said those authorities did not overcome differences in the applicants’ status or the statutory basis for the separate power considered in Sulaimon. He also rejected the submission that the distinction between Stamp 2 and Stamp 4 conditions could be set aside because both permissions arose under section 4. The court considered Lin v. Minister for Justice (No. 2) [2019] IEHC 73, which the parties raised at a later hearing.
The judgment records that neither side objected to the High Court deciding the leave application. Its order was limited to refusing leave to appeal; it did not determine the proposed appeal points as an appeal.