Supreme Court to hear case with significant implications for non-EEA students in Ireland

Supreme Court to hear case with significant implications for non-EEA students in Ireland

The Supreme Court has agreed to hear appeals by the Minister for Justice with significant implications for many non-European Economic Area people who stayed after coming to Ireland as students before 2011 and wish to continue living and working here, writes Ann O'Loughlin.

In a published determination, a three-judge Supreme Court said it was "self-evident" the issues raised are of general public importance, with a substantial number of cases in the High Court immigration list said to be dependent on their outcome.

The two test cases have 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 reside in Ireland for a maximum seven years.

The fact a substantial number of persons within the State are said to be affected by the potential outcome of these cases in itself, renders the cases a matter of general public importance, the Supreme Court also said.

Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Mary Laffoy directed the Minister's appeals in both cases will be case managed together, made directions for exchange of legal documents and returned them for further case management late next month.

The appeals concern judgments by the Court of Appeal last December in both cases.

The Irish Human Rights and Equality Commission was involved in the appeals as amicus curiae, assistant to the court on legal issues.

The COA ruled, 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 European Convention on Human Rights

It held a proposed refusal of an application for permission to remain, under Section 4.7 of the Immigration Act 2004, of persons such as the applicants potentially interferes with their right to respect for private and family life such as to engage Article 8.

The court noted the then Minister accepted she had to consider such rights when considering whether to make deportation orders.

The Minister's "stark" refusal to consider those same rights before making decisions requiring the applicants, who came here lawfully and have lived here lawfully for years, to leave the State was not consistent with her obligations under Section 4.7 of the 2004 Act, it held.

It was for the Minister to decide whether or not a refusal to renew permission to remain would have such grave consequences as to engage Article 8, subject to judicial review, it also said.

The judgments concerned two Mauritian families who applied under Section 4.7 of the 2004 Act for permission to remain on the basis of "change of status".

They involve Mauritian nationals, who came here in 2006 as students and are working here, and their children.

The applicants had sought permission to change to Stamp 4 status - which would entitle them to work, receive social welfare payments and not have to be students.

Before 2011, non-EE students did not need a visa to study here. After the new policy was introduced, a transitional arrangement provided 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.

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