The High Court has refused an application by Dhanwantee Bundhooa challenging the Minister for Justice and Equality’s refusal to deal with her application for permission to remain in Ireland under section 4 of the Immigration Act 2004.
Mr Justice Max Barrett delivered the judgment on 21 December 2018. The court held that, because Ms Bundhooa did not have an existing permission under section 4, there was no permission for the Minister to renew or vary. It rejected her challenge to the Minister’s decision of 22 September 2016.
Ms Bundhooa, a Mauritian citizen, had held student permission that expired in 2011. After marrying an EU national, she applied in July 2015 for a residence card under the European Communities (Free Movement of Persons) Regulations 2006. She received temporary permission on stamp 4 conditions in January 2016, but her residence-card application was refused in April 2016 on the basis that the marriage was one of convenience. No review was sought, and that decision remained in force.
She applied for permission to remain under section 4 in May 2016. The Minister declined to deal with that application, stating that she lacked permission when it was received and that the question of amending or extending permission did not arise. The judge said the decision used an inexact reference to the legislation, which speaks of renewing or varying permission, but its meaning was clear: a non-existent permission could not be varied.
The court also rejected arguments concerning the Minister’s reasons and duty of candour. It said the application had been made under section 4, and Ms Bundhooa had not asked the Minister to exercise any separate discretionary executive power to grant permission to remain. The judgment said there was no separate obligation to consider that power.
The judge noted that if deportation proceedings under the Immigration Act 1999 proceed, Ms Bundhooa may make written representations, including about her family and domestic circumstances, which the Minister must consider. The court said the decision’s reference to the possibility of applying for a visa from outside Ireland was a statement of fact, not an invitation to leave.
Distinguishing the Supreme Court’s decision in Luximon, the court described Ms Bundhooa as an unlawful long-duration resident, unlike the lawful residents in that case. It said no further benefit could arise from the temporary stamp 4 permission because the residence-card application had been found to involve a marriage of convenience. The court refused the application; it did not decide any later deportation process or whether she would ultimately be permitted to remain.