The Court of Appeal has dismissed appeals by two Malaysian students who were refused permission to land in Ireland in December 2020, ruling that the Government’s policy on online English language courses could lawfully be applied as a public policy ground under immigration law.
The students, Chain Wen Wei and Tang Ting Ting, arrived at Cork Airport on 12 December 2020 intending to take English language courses due to begin in January 2021. Their entry was refused because the courses were to be taught online during Covid-19 restrictions. Each challenged the refusal by judicial review. The High Court dismissed both cases in March 2021, and the students appealed.
The appeals raised the meaning of “public policy” in section 4(3)(j) of the Immigration Act 2004. The students argued it should be read alongside “national security”, limiting its use to cases involving an individual’s conduct that posed a real and immediate threat to fundamental State interests. The State argued that the provision allowed refusal on the basis of general Government policy on entry and study.
In a judgment delivered on 2 June 2023, Ms Justice Faherty said the two terms were distinct. She held that public policy could include Government policy regulating entry, consistent with the 2004 Act’s purpose of controlling entry in the interests of the common good. The court rejected the argument that the word “or” in the provision required the two grounds to be read together, and said the interpretive principle *noscitur a sociis* did not require a narrower reading.
The court found that the policy, originating in 2011 guidelines barring entry for part-time or distance-learning courses, was applicable to the students’ circumstances. Government guidance issued in October 2020 said prospective students should wait until in-person tuition resumed. Although Ireland was at Level 3 restrictions when the students arrived, the court noted that Level 5 restrictions and online classes were expected to return in January.
The court said the public policy power was not open-ended and that its outer limits did not need to be determined in these appeals. It concluded that the policy had not breached those limits and that its application to the students was not irrational or unreasonable. The judgment did not decide that every refusal based on Government policy would be lawful.
The court dismissed both appeals and proposed that the students pay the respondents’ costs. Any party seeking a different costs order was given 21 days from receipt of the electronic judgment to notify the Court of Appeal Office; otherwise, the proposed order would be perfected.