The Court of Appeal ruled that a person’s time in Ireland on a student permission does not automatically make them a “settled migrant” for the purposes of Article 8 rights. But the Minister for Justice cannot rule out a proportionality assessment solely because a person had student permission: exceptional circumstances may make one necessary.
The judgment, delivered by Mr Justice Michael Peart on 5 December 2018, dealt with two appeals involving three Mauritian nationals identified as VR, RR and SO. Each had entered Ireland on student permissions, remained after those permissions expired and later faced deportation orders. The appeals concerned whether the Minister had to assess whether deportation would disproportionately interfere with their private lives.
The Minister had considered the private-life claims using the five-stage test in R (Razgar) v Home Secretary. In each case, the Minister accepted that deportation could interfere with private life, but concluded that the interference was not grave enough to engage Article 8 and require a proportionality assessment. The Minister therefore did not proceed to the remaining stages of that test.
The Court of Appeal rejected the idea that the issue could be decided simply by labelling each person a settled migrant or not. Student permissions are temporary and limited in purpose, the court said, and a student will generally know that permission is due to end. That makes it difficult for student residence to carry the same weight as the position ordinarily associated with a settled migrant. Still, the Minister must consider the substance and significance of the particular person’s asserted private-life rights. A proportionality assessment may be required in an exceptional case.
In SO’s case, the High Court had quashed a deportation order made on 27 May 2016 after finding that her student residence made her a settled migrant. The Court of Appeal held that conclusion was wrong and allowed the Minister’s appeal, setting aside the part of the High Court order that quashed the deportation order.
VR and RR had appealed after the High Court refused them leave to seek judicial review. The Court of Appeal allowed their appeal because the High Court had treated students as categorically unable to qualify as settled migrants or obtain an Article 8 proportionality assessment absent exceptional circumstances. But the court did not send their leave application back for reconsideration: it concluded that, on the facts they had asserted, there were no substantial grounds to find they were entitled to such an assessment. The ruling did not decide that they were entitled to remain in Ireland.