The High Court has refused a judicial review challenge by a Pakistani national to the Minister for Justice and Equality’s refusal to consider his 2015 request for residence permission under section 4 of the Immigration Act 2004.
Mr Justice David Keane held that the applicant’s entitlement to remain in Ireland while his subsidiary protection application was pending was not a residence permission under section 4. The court found that he therefore could not use that section to seek a new permission or to vary an existing one.
The applicant had entered Ireland lawfully in 2006. His last residence permission expired in September 2011, but he remained in the State. A deportation order made in February 2013 was revoked after he applied for refugee status. His refugee claim was refused, and his appeal against a recommendation to refuse subsidiary protection remained undecided at the time of the judgment.
In November 2015, his solicitors asked the immigration service to grant him residence permission, relying on his relationship with an Irish citizen brother and a family reunification policy. They also argued that a temporary residence certificate issued while his subsidiary protection claim was pending amounted to a form of permission that could be varied to allow him to work.
The immigration service refused the request in September 2016, saying he had no permission when it was made and so there was no permission to amend or extend. The applicant argued that the refusal failed to consider his family rights and that the temporary certificate meant he did have a relevant permission.
The judge distinguished an entitlement to remain while a protection claim is being considered from permission to reside under section 4. The certificate was treated as a registration certificate for specified purposes, but that did not make it a section 4 permission. The court also held that section 4’s permission powers relate to entry and that its renewal or variation provision applies to a permission previously granted under that section.
The judge rejected arguments, raised in later submissions, that the 2015 request should instead have been treated as an application to renew his expired permission or as a request for permission under a broader power. Those grounds had not been included in the statement of grounds, and no application had been made to amend it. The court said the Minister was not required to consider an application on a basis that had not been made.
The court further held there was no free-standing right to seek permission to remain by relying on constitutional or European human rights family rights outside the statutory deportation process. The judicial review application was refused. The court made no order quashing the Minister’s decision.