Supporting Documents:
031-2019 Resp Notice.pdf31-2019 Rughoonauth v Min. for J&E AFL Web.pdf

THE SUPREME COURT

DETERMINATION

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicants to appeal to this Court from the Court of Appeal.

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT: 5th December, 2018

DATE OF ORDER: 14th December, 2018

DATE OF PERFECTION OF ORDER: 31st January, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON THE 21st FEBRUARY 2019 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

2. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

3. It should be noted that any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.
4. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

5. The applicants are a married couple who seek leave to appeal against the decision of the Court of Appeal (see Rughoonauth v. The Minister for Justice and Equality [2018] IECA 392). The Court allowed their appeal against a High Court refusal to grant leave to seek judicial review in respect of deportation orders made by the respondent, but declined to remit the matter to the High Court.
6. They are each nationals of the Republic of Mauritius who entered the State in 2008 and 2009 on foot of student visas when aged, respectively, 31 and 33. They overstayed the permitted period of residence by a considerable margin. The husband’s permission expired in 2012, while that of the wife expired in 2014. The deportation orders were made in July 2016. The evidence was that the respondent accepted that the proposed removal would be an interference with the applicants’ right to respect for their private and family life, but did not consider that the interference would have consequences of such gravity as to engage the operation of Article 8 of the ECHR.

7. The case made by the applicants is that, having regard to their previous lawful residence, they are “settled migrants” and therefore entitled to a substantive assessment of their rights under Article 8 prior to a decision to deport them.

8. The respondent says that the applicants cannot be regarded as settled migrants since they were aware at all times that they would have to leave when their student permissions expired, and that those permissions were finite and qualified in nature. Their continued presence here after the expiry date was precarious, and removal of a person in that position will violate Article 8 only in the most exceptional circumstances.

9. The notices filed by the parties are available on this website and will not be summarised here in any great detail.

10. In the High Court, Humphries J. took the view that students could never be considered to be settled migrants. On appeal, the Court of Appeal (in a judgment given by Peart J.) thought that the position was more nuanced. However, it found that residence on foot of a temporary, time-limited student permission was correctly classified as “precarious”. The applicants take issue with the use of that term, and say that the judgment equates their situation with that of people who were never lawfully in the State, and puts them in a weaker position than that of asylum seekers.

11. The applicants have contended that the respondent is operating a fixed policy that precludes the possibility that a student might, depending on the individual circumstances, acquire private life rights within the State. The Court of Appeal expressed the view that such a policy would be insufficiently nuanced, and that the possibility that an individual student might become a settled migrant, entitled to an Article 8 assessment, could not be ruled out.

12. Further, the Court of Appeal considered that the focus should not be on the question whether students were settled migrants, but on whether on the facts of the individual case a person’s private life rights were of such substance and significance, and the consequences of deportation so grave, as to engage Article 8 and require a proportionality assessment. The applicants say that this was not an analysis put forward by the respondent.

13. The applicants rely on the decision of this Court in Luximon and Balchand v. Minister for Justice and Equality [2018] 2 ILRM 153 and assert that the issue in the instant case is closely related. The respondent disputes this, pointing to the fact that in Luximon the issue was the refusal of the Minister to consider Article 8 rights in the context of an application for a change of immigration status.

14. The respondent submits that what this Court found in Luximon was that the applicants’ Article 8 rights were engaged, and should have been considered, at the time when they applied for a renewal or variation of their permission to reside.

15. The Court does not consider that the comparison with Luximon and Balchand is apt. The debate in those cases took place in the context of applications to renew or vary the permission to reside that had previously been extended over several years. It was that factual context that gave rise to the distinction drawn in the judgment between those respondents and visitors, short-term entrants and those who had no right to be in the State at all. The Minister had refused the applications and directed the persons concerned to leave. The kernel of the case was the Minister’s (unsuccessful) argument that neither the legislation nor the Convention obliged him to consider family and private life in the circumstances. It was at all times accepted that he had to consider it if, ultimately, the deportation process was invoked.

16. The Court found that the Minister had acted ultra vires the legislation and, also, in a manner that would have compelled the families to become unlawful residents in order to have their rights taken into account. On the facts of the cases, there were grounds for holding that the refusal of renewal or variation amounted to an expulsion, and Article 8 should have been considered. However, the judgment does not support the proposition that any person who has at some stage resided in the State lawfully is thereafter to be regarded as having the status of a settled migrant.

17. There may be some scope for argument as to whether the use of the term “precarious” is appropriate to the status of a person who currently is lawfully resident, such as a person with a student permission. However, it would appear to be more difficult to argue that, as a matter of law, a person whose permission has expired must be regarded as “settled” simply because he or she once had permission. For the purposes of Article 8(2), the underlying point is the distinction between the situation of persons who create a family life within the host jurisdiction at a time when they are lawfully resident, and perhaps have a history or an expectation of long-term residence, and those who do so when they are aware that the continuation of that life within that State is precarious. The jurisprudence of the ECtHR has established that in the latter circumstances the removal of a non-national family member will constitute a violation of Article 8 rights only in exceptional circumstances.

18. In deciding whether or not the applicants have made out a case that meets the constitutional criteria, the Court has to have regard to the fact that the submissions made by them are entirely at the level of principle. The note of the ex tempore judgment in the High Court makes no reference to any facts subtending the claimed Article 8 rights. The Court of Appeal judgment referred briefly to the respondent’s description of the “somewhat tenuous nature of the social and educational ties each applicant has asserted they have developed during their residence here”, but found it unnecessary to describe them in any detail.

19. It is noteworthy that the applicants succeeded in the Court of Appeal to the extent that they won the appeal, but the matter was not remitted to the High Court for reconsideration of leave to apply for judicial review. The application for leave to this Court makes no criticism of the lack of factual analysis in the judgment and does not engage with the basis for the refusal to remit. No material facts are referred to, even in the broadest manner, that might suggest that a fuller assessment of their Article 8 case by the respondent could have made any difference.

20. In those circumstances there is nothing to indicate to this Court that there is anything to be gained by the applicants, should leave to appeal be granted. Leave will therefore be refused.