The High Court has refused an Algerian man’s application to quash the refusal of his application under Ireland’s Scheme to Regularise Long Term Undocumented Migrants, finding that he did not qualify under either strand and had not established that the scheme unlawfully discriminated against him.
In a judgment delivered on 28 November 2024, Ms Justice Miriam O’Regan also rejected his argument that the decisionmaker had unlawfully fettered ministerial discretion. The case was a judicial review of the Minister for Justice’s appeal decision of 31 August 2023. The court refused the relief claimed; it did not make a deportation order.
FZ arrived in Ireland on 6 December 2016 and applied for international protection that day. His claim was refused in November 2018, and the International Protection Appeals Tribunal upheld that refusal in August 2019. A later application for permission to remain was refused in September 2020. The judgment states that no deportation order had been made against him.
FZ applied to the scheme in February 2022. The first, main strand required applicants to have been undocumented for four years before the scheme began in January 2022. The second strand was for current international protection applicants who had been awaiting a decision for at least two years by 7 February 2022.
His application was refused in February 2023 because he had not shown that he had been undocumented for the required period. On appeal, his representatives argued, among other things, that he had held no permission during part of 2019 and 2020 and that delay in processing his protection claim should be disregarded. The appeal decision upheld the refusal, citing insufficient documentary evidence of continuous residence for the required period.
The judge noted that the application form, produced during the hearing, showed FZ had applied under the main strand, although parts of his case had appeared to concern the second. She found that he was outside the eligibility criteria of both strands. For the second strand, he lacked a temporary residence certificate, was no longer a current protection applicant and had not been awaiting a decision for the required two years by the start date.
The court also found no sufficient evidence that the Minister’s discretion had been fettered. The scheme contained no provision for exercising discretion, and the judge said the applicant had not established an entitlement to seek discretion through a scheme for which he was ineligible.
The judge rejected the equality challenge, finding the proposed comparator invalid and the second strand’s classification rationally connected to its stated purpose. She concluded that FZ had not met the burden required to quash the decision or establish that the scheme was discriminatory, irrational or disproportionate.
The Minister was provisionally awarded costs, subject to written submissions within 10 days if the parties disagreed. In default of submissions, the proposed costs order would be made.