The Supreme Court overturned a High Court ruling in a judicial review challenge to the refusal of Delour Hussein’s application for long-term residency without work permit conditions, commonly called Stamp 4 permission.
Mr Hussein’s application was refused in November 2011, and a reviewed decision later that month upheld the refusal. The High Court granted relief, finding that the Minister had unlawfully restricted her discretion by refusing the application solely because of his conviction for driving without insurance.
The Minister appealed. By the time the appeal was heard, Mr Hussein had become an Irish citizen in September 2014, so his case was moot. The Supreme Court nevertheless allowed the appeal to proceed. Its order said it would do so notwithstanding mootness; the Minister had undertaken to pay Mr Hussein’s appeal costs.
The court considered whether criteria in sections 4(3) and 4(10) of the Immigration Act 2004 constrained the Minister’s power under section 4(7) to renew or vary a permission to remain. It concluded that the listed criteria applied to different decisions and should not be read into the section 4(7) power. That power remained subject to general requirements including rational decision-making and natural justice.
The court also rejected the claim that the Minister had adopted an inflexible policy against applicants convicted of driving without insurance. It said the evidence showed the Minister regarded the offence as serious, but did not establish that it was a permanent bar to Stamp 4 permission. A department letter said Mr Hussein could reapply and that a further period in Ireland without convictions would be considered.
The court did not decide whether the Minister had a separate executive power to operate residency schemes outside the statutory provisions. The Minister’s counsel said there was no evidence in this case to argue that broader issue, and the court confined its consideration to statutory interpretation and the alleged fettering of discretion.
The Supreme Court reversed the High Court decision and refused judicial review of the Minister’s decisions of 3 and 25 November 2011. It did not consider Mr Hussein’s ancillary claims.