The High Court has refused a South African man’s application to quash the refusal of his application under a special scheme for certain non-EEA nationals who held student permission in Ireland between 2005 and 2010.
The judgment, delivered by Ms Justice Bolger on 31 May 2022, concerned a scheme application refused in September 2019 and upheld on review. The applicant sought judicial review, arguing that the Minister for Justice had failed to properly consider the material he supplied and had irrationally required official documents he could not produce.
The man entered Ireland lawfully in 2009 on a student visa, which expired in February 2012. The judgment says he then remained without permission and lived with, and was supported by, his Irish-citizen cousin. He said he had not left Ireland since his visa expired. He submitted photographs, letters from people who said they knew him in Ireland, an affidavit from his cousin, a Public Services Card, and explanations for his lack of payslips, bank account and household bills.
The scheme required applicants to provide documentary evidence of continuous presence, including for 2016, 2017 and 2018 to date. Its materials also listed evidence such as bank statements, employment and tax records, household bills, and efforts to remain in Ireland legally. The Minister’s position was that the applicant had not supplied the required type of documentation and was therefore ineligible before other scheme criteria were considered.
The applicant argued that the scheme was intended to assist undocumented migrants living “in the shadows” and that the evidence he provided should have been considered. The Minister said the scheme was for people who had engaged openly with State authorities and could meet its specified requirements.
The judge held that the scheme was an administrative benefit and did not engage constitutional, Convention or EU fundamental rights. The Minister could set its qualifying criteria, provided she acted lawfully. The judge found that the scheme’s documents clearly required specified financial or other official evidence and that the Minister was entitled to find the applicant’s material insufficient, even if it could support his claim of continued residence.
The court also rejected the argument that the employment and tax-document requirements irrationally demanded proof of unlawful work. The judgment said those documents could have related to a period when an applicant’s student permission allowed work. It concluded that the refusal and review decision were lawful and refused the reliefs sought.
The judge added that, even if that conclusion were wrong, she would not exercise her discretion to grant relief, referring to uncertainty over whether the applicant could have met another scheme requirement concerning engagement with immigration authorities. On costs, she gave an indicative view that they should follow the cause and that the Minister was entitled to a costs order. Further submissions on costs or final orders were listed for 17 June.