Supreme Court case has implications for people from outside EEA who stayed on to work here

By Ann O'Loughlin

A Supreme Court judgment could have positive implications for the rights of thousands of people from outside the European Economic Area who came here as students before 2011 and stayed on to work.

In a unanimous ruling today, the seven-judge court found the Minister for Justice, before deciding "change of status" applications by two applicants from outside the EEA who came here on student visas, must consider their rights to private and family life under Article 8 of the European Convention on Human Rights.

Mr Justice John MacMenamin stressed the court's judgement was based on the facts of the two appeals and requires only that “consideration” be given by the Minister to their Article 8 rights. The State and Minister are entitled to impose conditions on entry here but the Minister must lawfully determine whether or not there has been compliance with conditions, he said.

An estimated 400 cases were awaiting the Supreme Court ruling which was welcomed by the Irish Human Rights and Equality Commission, involved in both cases as an assistant to the court on legal issues.

The judgment has implications for non-EEA people who came here as students before the Government introduced a new study policy in 2011 that non-EEA students can only live here for a maximum seven years.

After the new policy was introduced, a transitional arrangement provided that those who came here before January 2011 and who wished to stay beyond seven years, were given a brief extension of their permission to apply for a work permit.

The State appealed findings of the Court of Appeal that, before determining “change of status” applications by the applicants, the Minister must consider their rights to private and family life under the Constitution and Article 8 of the ECHR. A proposed refusal of the applicants permission to remain, made under Section 4.7 of the Immigration Act 2004 which provides for renewl or variaiton of a permission, potentially interferes with their right to respect for private and family life under Article 8, the COA said.

Both applicants applied under Section 4.7 for permission to remain on the basis of "change of status". They sought permission to change to Stamp 4 status, entitling them to work and to social welfare payments.

The first appeal concerned Danibye Luximon, a dental practice co-ordinator, who was registered from 2006 on "Stamp 2" conditions allowing her study and work on a limited basis. Her two daughters joined her here later in 2006. After her permission to remain on Stamp 2 expired in 2012, the Minister refused to let her remain on Stamp 4 conditions.

The second appeal concerns Taswin Balchand who came here in 2006 and registered to study. He married Chandrika Gopee in 2008. She came here from Mauritius shortly afterwards and their son was born here in 2009. The couple's "Stamp 2" permissions were regularly renewed until 2013 after which they were refused a Stamp 4 permission.

Mr Justice MacMenamin found the manner in which the Minister sought to apply Article 4.7 in both cases was unlawful.

These applicants lawfully came here a number of years ago and remained without objection until 2011, when the law changed, he noted. Their long-term residence here, although conditional, required their Article 8 rights should have been considered when the Minister was considering their applications for variation or renewal of their entitlements.

There was no statutory basis for how the Minister used Section 4.7 in refusing their applications, he ruled.

The Minister's decisons in these cases had the effect of expulsion orders and his interpretation of Section 4.7, and its consequences, would be contrary to public policy and might well necessitate that applicants under the Section would be constrained to act in an unlawful manner, the judge held.

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