Supporting Documents:
35-2019 Shyani Devi Omrawoo v Minister for Justice and Equality AFL Web.pdf 035-2019 Resp Notice.web.pdf

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 (AS AMENDED BY SECTION 34 OF THE EMPLOYMENT PERMITS (AMENDMENT) ACT, 2014) AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

BETWEEN

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

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 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 27th February, 2019 AND WAS NOT IN TIME.

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 33rd 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.

Background

5. This application for leave relates to the same judgment of the Court of Appeal as that in the case of Rughoonauth v. The Minister for Justice and Equality [2018] IECA 392. Leave to appeal in that case was refused (see Rughoonauth v The Minister for Justice and Equality [2019] IESCDET 124. The issue is also the same – the rights of persons who came to the State on foot of student visas but have overstayed.

6. The applicant is a national of Mauritius who entered the State lawfully in 2007. Her permission was renewed annually until its ultimate expiration in September 2012. In February 2013 she applied for stamp 4 permission, which was refused in September 2013. She nonetheless remained and continued to work. A deportation order was made in May 2016. The case made by the applicant is that, having regard to her previous lawful residence, she is a “settled migrant” and therefore entitled to a substantive assessment of her rights under Article 8 prior to a decision to deport her.

7. The applicant succeeded in obtaining an order of certiorari in the High Court. The evidence was that the respondent accepted that the proposed removal would be an interference with the applicant’s right to respect for her 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. O’Regan J. took the view that residence based on a student permission created the status of “settled migrant”. However, she granted leave to the respondent to appeal her decision.

8. On appeal, the Court of Appeal (in a judgment given by Peart J.) expressed the view that the policy contended for by the respondent was insufficiently nuanced. The possibility that an individual student might become a settled migrant, entitled to an Article 8 assessment, could not be ruled out.

9. 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.

10. However, the Court 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.

Extension of time

11. The applicant’s solicitor appears to have been taken unawares by the change in the rules that came into force in January 2019. The respondent does not oppose an extension in the circumstances.

The application for leave

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

13. The applicant has 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 respondent says that the applicant cannot be regarded as a settled migrant since she was aware at all times that she would have to leave when her student permission expired, and that such permission was finite and qualified in nature. Her 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.

14. The applicant relies on the decision of this Court in Luximon and Balchand v. Minister for Justice and Equality [2018] 2 ILRM 153 and asserts 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.

15. 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.

Decision

16. 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.

17. 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.

18. 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.

19. 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 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. The application for leave to this Court makes no criticism of the lack of factual analysis in the judgment. 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 applicant, should leave to appeal be granted. Leave will therefore be refused.

21. In the circumstances there is no requirement to consider the application for an extension of time.

And it is hereby so ordered accordingly.