The High Court has quashed immigration review decisions affecting two Mauritian women, after finding clear breaches of procedural fairness in one case and extending its reasoning to the other. It sent both reviews back for fresh consideration but did not grant either applicant permission to remain in Ireland.
In a judgment delivered on 10 March 2021, Mr Justice Max Barrett said Pamela and her partner, David, had materially identical cases under the Special Student Scheme. Both had been refused because they did not meet the scheme’s student eligibility requirements.
On review, a civil servant sent David’s case forward for consideration under the Minister’s separate discretion to allow a person to remain in Ireland. David was later granted permission to remain. Pamela’s case was not sent forward, and her review refusal was affirmed. The court said no good explanation had been given for the different treatment.
The judge found that Pamela had not been told that referral for consideration of the Minister’s separate discretion was a possible outcome of a review. The challenged decision also did not say whether referral had been considered or, if not, why. The court said that left Pamela unable to understand how her case had been handled or make an informed complaint.
The court accepted that Pamela was ineligible under the scheme and that refusal under it was correct. It therefore did not direct the Minister to grant her permission to stay or to refer her case. Instead, it quashed the review decision and ordered a fresh consideration. The new decision should state whether Pamela’s case will be sent forward for consideration under the separate discretion and, if it will not, explain why. The judge said the scheme refusal could be affirmed again.
Kamini’s case concerned the same review process. The Minister conceded that her application would rise or fall with Pamela’s. The court made the same order in Kamini’s case, while noting that David was a fellow Mauritian national but not Kamini’s partner.
Both judicial review applications were brought out of time. The court extended the time for each to the date the proceedings were brought. It said the extension was justified by the circumstances, including difficulties obtaining documents; for Kamini, the move of her initial advisers and disruption caused by Covid-19 restrictions were also relevant. The court’s orders quashed the review decisions and required fresh consideration; the judgment did not decide whether either applicant would ultimately receive permission to remain in Ireland.