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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hussein -v- Minister for Justice and Equality [2014] IEHC 34 (24 January 2014)
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Cite as: [2014] IEHC 34
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Judgment Title: Hussein -v- Minister for Justice and Equality Neutral Citation: [2014] IEHC 34 High Court Record Number: 2012 250 JR Date of Delivery: 24/01/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 34 THE HIGH COURT JUDICIAL REVIEW [2012 No. 250 J.R.] BETWEEN DELOUR HUSSEIN APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr. Justice McDermott delivered on the 24th day of January, 2014 1. The applicant is a citizen of Bangladesh and at the time of the initiation of these proceedings, had been working as a chef in Ireland since 6th February, 2005. He initially worked in accordance with the terms of a work permit which was subsequently renewed on a number of occasions over a period of five years on the basis of “stamp 1 conditions”. On 16th March, 2010, he applied for a “long term residence with exemption from work permit conditions”. This form of permission enables the applicant to reside and work in the state for a period of five years. The permit is not tied to a particular job or employer and allows the beneficiary considerably more flexibility in obtaining employment. It is also of importance to any future naturalisation application in that it enables him to reside lawfully in the state for a period of five years. The terms of the visa upon which he had hitherto worked in the state permitted him to reside in Ireland on condition that he did not enter employment unless the employer had obtained a permit and he was not permitted to engage in any business or profession without the permission of the Minister for Justice. 2. By letter dated 12th April, 2010, the applicant was informed by the long term residency section of the Irish Naturalisation and Immigration Service (INIS) that there would be a delay in processing his application due to a backlog. He was required to ensure that his permission to remain and work permit were kept in order and up to date while his application was under consideration. On 2nd August, 2011, the applicant wrote to the INIS furnishing them with the additional information that on 9th December, 2010, he had been convicted of driving a motor car without insurance at Sligo District Court and was fined €300. The fine was paid on 27th March, 2011. He provided details of the fine and confirmation that it had been paid. 3. By letter dated 3rd November, 2011, the applicant was informed that the Minister had refused the application for a s. 4 long term residency visa. He was informed that in the course of a character check carried out by the Garda National Immigration Bureau, a report had been received from An Garda Síochána indicating that the applicant “had come to their adverse attention” having been convicted of the offence of driving without insurance. The applicant was advised that if this information was incorrect, the applicant would be reassessed but that otherwise the decision would stand. 4. The applicant’s solicitors wrote to the INIS on 16th November, 2011, confirming that the information concerning his conviction was correct. They reminded the INIS that the applicant had written personally to them informing them of the conviction and the payment of the fine in August, 2011. A request was made that before reaching a “final decision” the submission set out in the letter be considered. The facts of the offence were explained. It was stated that the applicant had been apprehended while driving his friend’s car. When stopped by a garda the usual demands were made. The motor car driven by the applicant was taxed and insured and he held a valid Bangladeshi driving license. He believed that he could lawfully drive the car. In fact, he was unaware at the time that he needed to be a named driver on the policy of insurance in order to be covered. It was stated that he was advised by the garda to take out insurance in his own name and present it to the garda station, but he was unable to do so because he could not obtain insurance without an Irish driving license. He was prosecuted and pleaded guilty to the charge. In addition, a reference was included from his employer attesting to his honesty and integrity as an employee and he expressed his deep regret that this incident had occurred. He had been employed in the state for a period of approximately six years. It was submitted that it would be unduly harsh and disproportionate to make adverse character findings against the applicant, particularly since the offence was not of the most serious kind. 5. On 23rd November, 2011, the INIS replied and indicated that the Minister for Justice and Equality had reviewed the issues involved, but had not changed his previous decision. The letter stated:-
7. By order made 26th March, 2012, (Cooke J.) the applicant was granted leave to apply for judicial review seeking orders of certiorari and mandamus against the respondent on the grounds that:-
(b) The respondent has unlawfully fettered his discretion and that of his servants or agents by adopting an unreasonable and fixed policy to refuse long term permission to reside on stamp 4 conditions to eligible persons on the basis of convictions for relatively minor offences. (c) The respondents decisions (the refusal and the review decision upholding the refusal) were unreasonable and disproportionate given the nature of the offence, the circumstances under which the offence occurred, and the punishment administered by the District Court (a €300 fine). The outcome of the application was of considerable significance to the applicant as stamp 4 permission for five years would permit him to change jobs and provide some certainty in relation to his immigration/residency status into the future. (d) The respondent failed to comply with the principles of natural and constitutional justice and the basic fairness of administrative procedures. The respondent did not indicate to the applicant that he intended to refuse the application on the basis of “lack of good character” because of conviction which occurred nine months after the applicant had applied for the permission. Furthermore, the policy of the respondent that road traffic offences are considered to be serious offences enough to warrant refusal is not published and he did not indicate, even in the review decision, if (or at what point) an application might succeed despite the conviction.” 8. The “Long Term Residency Scheme” operated by the respondent enables non-European Union nationals who have been working in Ireland on foot of work permits for more than sixty months to apply and be considered for a more general form of permission to remain in the state. This is sometimes referred to as a five year “stamp 4 permission” and allows them to live and work in Ireland without the need for a work permit for five years. 9. The eligibility requirements for the scheme as advertised and applied by the INIS are as follows:-
• You must have a minimum of sixty months (five years) reckonable residence on the date you submit your application. • Only legal residents in the state on work permit, work authorisation or working visa conditions will be counted as reckonable residence for the purpose of your long term residency application. This reckonable residence must be reflected by either a stamp 1 or stamp 4 endorsement on your passport – and not by the dates on your work permits, working authorisation or working visa… • Your permission to remain in the state must be up to date when you apply. • You must be in gainful employment when you apply and during and after the application process. • You must be of good character. • Any period of time for which you do not have permission to remain is not counted when we calculate your reckonable residence…”
7. Section 5 of the 2004 Act, provides that no non-national may be in the state other than in accordance with the terms of a permission given under the Act by or on behalf of the Minister or given before the passing of that Act. Section 4 provides that an immigration officer may on behalf of the Minister give a non-national, either by means of a document or by placing a stamp on his or her passport, an authorisation “to land or be in the state”. Section 4 does not prescribe any conditions for the grant of such a permission. Subsection (3) does, however, prescribe a series of circumstances in which an immigration officer, on behalf of the Minister, may refuse to give a permission and subs. (6) provides that a permission can be given subject to such conditions as to duration of stay, engagement in employment, business or profession as may be thought fit. 8. In effect, therefore, the Minister would appear to have a statutory discretion in granting permission to land or to be in the state and the “administrative scheme” thus published amounts in practice to a statement as to the circumstances and conditions in which the Minister is prepared to entertain and consider applications for the grant for permission to remain on the basis of a “stamp 4” endorsement which will be valid for a period of five years.” 12. An analogy was suggested with the IBC05 Scheme, which became known as the “Mother and Child Scheme”, considered by the Supreme Court in Bode v. Minister for Justice, Equality and Law Reform [2006] IESC 341. Under that scheme the Minister introduced an administrative arrangement for the consideration of applications for permission to remain in the state based on the parentage of Irish born children, born before 1st January, 2005, after the constitutional amendment changing the law excluding from automatic Irish nationality and citizenship, a child born to parents neither of whom was entitled to Irish citizenship at the time of the child’s birth. Applications were accepted under the scheme for a limited period of time between January and March, 2005. A general policy was adopted of granting applications provided certain conditions were fulfilled, one of which was proof of continuous residence in the state since the birth of the child. These applications were considered and determined without a substantive analysis of the legal rights of an Irish citizen child or foreign national parents. The materials and evidence produced were examined in order to verify whether the terms of the scheme had been complied with. The permission was granted subject to a number of conditions, including a condition that the person would obey the laws of the state and not become involved in criminal activity. The evidence indicated that the scheme was operated as an administrative scheme. Individual applications were not examined in respect of their underlying merits. A person who applied under the IBC05 Scheme, but whose application was rejected, was not placed in a more prejudicial position than before the scheme was introduced. If an application was refused under the scheme, the applicant could still assert his/her rights and entitlement to remain in the state. 13. In the High Court, Finlay Geoghegan J., relying upon the engagement of the fundamental rights of the child in question and by reference to the proportionality test, quashed the decision but the Supreme Court unanimously allowed the state’s appeal. Denham J. (as she then was) delivered the judgment of the court in which she stated:-
63. Exercising such power, in light of the unique circumstances in Ireland in 2005, in addition to the specific statutory procedures, the special administrative scheme, the IBC05 Scheme was introduced by the Minister. The Minister obtained government approval. It was a generous scheme, for those who came within its criteria. It was an example of the state exercising its discretion to allow specific foreign nationals to reside in Ireland. Yet, the foreign nationals still retained all rights under the formal procedures. 64. The IBC05 Scheme was administered by the IBC05 unit in the Department of Justice, Equality and Law Reform. It was a sui generis scheme. Under this scheme leave to reside was granted on general principles. 65. The scheme was introduced by the Minister exercising the executive power of the state, to address in an administrative and generous manner a unique situation which had occurred in relation to a significant number of foreign nationals within the state. However, those who did not succeed on their application under this scheme remained in the same situation as they had been prior to their application. They were still entitled to have the Minister consider the constitutional and Convention rights of all relevant persons. 66. The scheme enabled a fast, executive decision, giving a benefit to very many people. However, a negative decision in the IBC05 Scheme did not affect any substantive claim for permission to remain in the state. in other words, an adverse decision to an applicant under the IBC05 Scheme left the applicant in no worse position than he or she was prior to the application as no decision had been made on any substantive rights. … 76. The basic premise of the applicants, and of the High Court, that the constitutional and Convention rights of the applicants were in issue in the IBC05 Scheme, was misconceived. Thus, much of the pleadings, judgment and submissions related to matters not in issue. 77. The High Court found that the second applicant did not comply with the requirements of the scheme. However, it then fell into error in its analysis of the IBC05 Scheme. 78. I am satisfied that the scheme was an exercise of executive power by the Minister. It did not purport to address, nor did it address, constitutional or Convention rights. It was a scheme with clear criteria. On the face of the documents the criteria were applied to the second applicant, and he failed to meet the criteria. 79. As the IBC05 Scheme did not address constitutional or Convention rights, applicants who were not successful were left in exactly the same position as they had been prior to their application. There was no interference with any constitutional or Convention rights. Consequently, it was an error on behalf of the High Court to consider the application of the scheme as an arena for decision making and constitutional or Convention rights, whether they be as considered by the High Court: (i) the rights of the child under Articles 40.3 and 41 of the Constitution; (ii) rights under Article 8 of the European Convention on Human Rights; or (iii) rights under Article 14 of the Convention or other rights. It follows also, that in establishing the criteria for judicial review, the High Court took too expansive an approach. Neither constitutional nor Convention rights were in issue, at issue was whether or not the Minister acted within the stated parameters of the executive scheme. 80. Insofar as the issue of the rights under the Constitution and the Convention were considered and decisions made on these issues, it was a premature analysis by the High Court. Issues as to the constitutional and Convention rights of the applicants have yet to be considered by the Minister. Insofar as the review extended into this arena, it was in error.” 15. The nature of the scheme was further considered by Cooke J. in Saleem v. Minister for Justice, Equality and Law Reform [2011] IEHC 223:-
17. As noted by Cooke J. in Saleem, the grant of permission under the scheme is a matter for the exercise of discretion by the respondent under s. 4. Section 4(1) of the Immigration Act 2004, permits an immigration officer on behalf of the Minister to give a non-national permission to land or be in the state. Section 4(3) provides the grounds upon which permission may be refused. Section 4(6) provides that an immigration officer may, on behalf of the Minister, attach to a permission to land or remain “such conditions as to duration to stay and engagement in employment, business or a profession in the state as he or she may think fit”. Section 4(7) provides for the renewal or variation of a permission “to be” in the state. Section 4(10) provides that in performing functions under subs. (6) an immigration officer shall have regard to all of the circumstances of the non-national concerned known to the officer or represented to the officer by him or her and, in particular, to the following relevant matters:-
(c) any family relationships…with persons in the state, (d) his or her income, earning capacity and other financial resources, (e) the financial needs, obligations and responsibilities which he…is likely to have in the foreseeable future, (f) whether he is likely to comply with any proposed conditions as to duration of stay and engagement in employment, business or profession in the state, …” 18. It is clear, therefore, that before the administrative parameters for long term residency were conceived, the issue of previous convictions was considered as a matter of policy by the Oireachtas and a discretion was specifically vested in the immigration officer to refuse leave “to be” in the state or to remain following its renewal to an applicant convicted of an offence to which a penalty of twelve months imprisonment or more may apply. 19. Section 56 subs. (1) and (3) of the Road Traffic Act 1961 (as amended by s. 18 of the Road Traffic Act 2006) creates the offence of driving a motor vehicle without insurance. The penalty provided under s. 56(3) renders the convicted person liable on summary conviction to a fine not exceeding €5,000 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and imprisonment. It is the clear that the possible penalty falls well short of the twelve month period of imprisonment provided under s. 4(3). It is to be noted that the parameters for the grant of long term residency do not indicate that a previous conviction of a lesser kind may be taken into account under Section 4. Section 4(3) indicates the extent to which the legislature intended previous convictions to be taken into account. 20. The “good character” condition contained in the administrative scheme also applies to a consideration of whether a certificate of naturalisation should be granted under s. 15 of the Irish Naturalisation and Citizenship Act 1956, as amended. In Berkut v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Ryan J., 12th October, 2011) the condition was described as a “prerequisite that could not be overlooked” by the Minister in considering an application. In that case Ryan J., though recognising that the case before him was somewhat unusual, nevertheless concluded that the decision as to good character was, notwithstanding the wide meaning that may be attached to that phrase and the wide discretion of the Minister to grant or refuse a certificate of naturalisation, amenable to judicial review. In that case a young man had been arrested in a supermarket with a toy gun on New Year’s Eve. He was not prosecuted but was refused citizenship on the basis of an adverse finding as to his character. The failure of the Minister to clarify the situation and inquire into the explanation offered by the young man for his behaviour amounted to a breach of appropriate procedure. It was found to be unfair and unreasonable. However, it is equally clear from the decision that had proper procedures been followed, it was open to the Minister to determine that notwithstanding the failure to prosecute the young man, a finding might still have been open that he was not of “good character”. 21. It was made clear by Cooke J. in the Saleem case that the scheme for the granting of long stay residency under stamp 4 is operated under s. 4 of the Immigration Act 2004. The Minister exercises this discretion within the terms of the scheme. It is clear from a letter of 5th October, 2011, that issued in a different case that there was a policy in the INIS, long term residency section, to refuse applications from those convicted of offences such as driving without insurance because it was considered to be a serious offence. In that case, because the applicant had been convicted of driving without insurance, a decision was made not to grant long term residency. In this case the applicant failed because he committed the same offence and was, therefore, deemed not to be of good character. It was made clear that the applicant was refused as a result of his criminal conviction alone. That refusal is inconsistent with the spirit, terms and intention of section 4(3). The “good character” condition of the residency scheme, insofar as it permits a refusal because of a conviction for a s. 56 offence, is at variance with the policy of the Oireachtas as expressed under the Act. The respondent has offered no evidence to explain the letter or to refute the existence of such a policy. I am satisfied that the unexplained letter, together with the decision in this case, indicate that such a policy exists. I am also satisfied that the respondent has unlawfully and unreasonably restricted his discretion by adopting this policy and moreover, in refusing the application on the sole ground of this conviction was acting contrary to the intention of the Oireachtas as set out in s. 4(3) which precisely delineates the nature of a criminal conviction which may result in a refusal. I have no doubt that the Minister is entitled to construct a conditional scheme for particular classes of applicants as he had done in respect of the various stamp 0, stamp 1, stamp 2, 3 and 4 visas to be and remain in the state. However, in doing so the respondent must act within the framework of the statutory discretion conferred by section 4. 22. It was also submitted that the court should have regard to the provisions of Council Directive 2003/109/EC of 25th November, 2003, concerning the status of third country nationals who are long term residents. Ireland opted out of this Directive. However, it is said that regard should be had to its terms and that s. 4 of the Immigration Act 2004, should be interpreted in a manner consistent with it and the consensus apparent among other European Union members and furthermore, that these principles should inform the discretion to be exercised in the applicant’s case. 23. Paragraph 8 of the Recital of Council Directive 2003/109/EC provides that third country nationals who wish to acquire and maintain long term residency status “should not constitute a threat to public policy”. The notion of public policy may cover a conviction for committing a serious crime. The Directive requires subscribing member states to grant long term resident status to third country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application. Article 6 confers on member states the discretion to refuse long term residence status on grounds of public policy or public security. It provides:-
24. The applicant relied on Hamza v. The Minister for Justice, Equality and Law Reform [2010] IEHC 427, in which Cooke J. considered the nature of marriage recognisable for the purposes of family reunification under s. 18(3)(b)(i) of the Referendum Act 1996. The term “marriage” was not defined in the Act. Cooke J. considered the provisions of Council Directive 2003/86/EC of 22nd September, 2003, on the right to family reunification. He considered that s. 18 had been incorporated into the Refugee Act in the interests of facilitating the reception of refugees and ensuring their personal wellbeing while in the state. Ireland had not opted into the Council Directive. However, notwithstanding the non-binding nature of the Directive, he concluded that it was desirable that the provisions of s. 18 should be construed and applied so far as statutory interpretation permits in a manner which is consistent with the policies and the consensus apparent among the member states of the European Union and the objectives of the Council Directive. He noted that the approach of the Directive towards the relationship between refugee (sponsor) and spouse was based upon the assessment of the reality of the conjugal relationship rather than upon the availability of formal verification of the legality of the marriage contract in a form recognisable in Irish law. He concluded:-
26. A number of other submissions were made to the court. It was submitted that the Minister failed to consider the applicant’s explanation as to how the offence was committed and the consequences for the applicant of a refusal. This is clearly not the case. Following receipt of the solicitor’s letter of 16th November, 2011, which contained the explanation and other submissions to which I have already referred, the Minister reviewed his previous decision but not in the applicant’s favour. I have no doubt also that there is no substance to the contention that the Minister did not adequately consider the consequences of the refusal: they were clear from the submission, the nature of the application and the legislation under which work permits and applications for certificates of naturalisation are made, all of which were well known to the Minister and his officials. 27. The applicant also claims that the Minister’s refusal was disproportionate because the decision was made some twenty months after the conviction. The applicant had worked and paid taxes in the state for six years and otherwise had not come to the attention of the authorities and remained in gainful employment. It was submitted that undue weight was given to the conviction which was for a minor offence and weight should have been given to the previous good character of the applicant and the length of time for which he worked in the state. 28. The applicant is unable to identify any constitutional right or right under the European Convention on Human Rights adversely affected by the refusal. His right and entitlement to remain in the state on the basis of the visa held by him at the time of the decision remained unchanged. Undoubtedly, if successful, the applicant would obtain a benefit. However, he is not entitled to that status as of right. It is given in the exercise of ministerial discretion. In addition, it has at all material times been made clear to him that he may reapply and that any subsequent conviction free period would, of course, be considered. I am not satisfied that the issue of proportionality as canvassed is relevant to this case since no fundamental right of the applicant is engaged or affected by the decision. This is not a case in which he faces deportation under which a balancing of rights has to be considered by the court, as in the European Convention cases cited. 29. I am, therefore, satisfied for the reasons given, that the applicant is entitled to an order of certiorari quashing the respondent’s decision of 3rd November, 2011, and the review of that decision of 23rd November, 2011, on grounds 1B and C.
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