The Court of Appeal has quashed two decisions refusing to renew the immigration permissions of a Mauritian couple and sent their applications back to the Minister for Justice and Equality for reconsideration. It held that the Minister had to consider the family and private life rights relied on in the applications.
The judgment, delivered by Ms Justice Finlay Geoghegan on 15 December 2016, allowed an appeal from a High Court order dismissing the couple’s application for certiorari. The challenge concerned the Minister’s decisions, communicated on 22 October 2014, refusing extensions of their permissions under section 4(7) of the Immigration Act 2004.
The couple had lived in Ireland with student permissions. Their son was born in Ireland in 2009, had lived there all his life, spoke English as his first language and had started primary school by the time of the application. Their solicitors asked the Minister to vary the parents’ permissions to Stamp 4 status, relying on constitutional rights and Article 8 of the European Convention on Human Rights. They argued that refusing the father’s renewal could disrupt the family, as the mother had permission to remain longer to finish her studies.
The October 2014 letters refused extensions but authorised temporary student permissions until 3 December 2014 so the parents could finalise their affairs. The letters said they must then leave unless they secured another form of immigration permission. The judgment noted that the mother had in fact obtained a Stamp 2 extension until July 2015, which the official who made the decision did not address.
The High Court had dismissed the challenge. On appeal, the Minister’s position was that the claimed rights did not have to be considered at the renewal stage and could instead be considered if deportation was later proposed. The Court of Appeal held that the Minister was obliged to decide whether the proposed refusal would have consequences serious enough to engage Article 8, assessed on the individual facts. That assessment belonged to the Minister and remained subject to judicial review.
The court said earlier decisions concerning people whose residence had been precarious did not resolve the position of people who had lived in Ireland with express permission. It also rejected the claim that applicants could simply be required to leave and apply from abroad: section 4(7) provides for a person in the State to apply to renew permission.
The court agreed with the High Court on one separate issue: the Minister was not obliged to publish a policy or criteria for applications of this kind. It vacated the High Court order, quashed the two October 2014 decisions and remitted the applications to the Minister for consideration and decision. It did not itself grant the requested immigration status or decide the renewal applications.