THE SUPREME COURT
[Appeal No. 58/2016]
Clarke C.J.
O'Donnell J.
MacMenamin J.
Dunne J.
O'Malley J.
DANIYE LUXIMON AND PRASHINA CHOOLUN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND DANIYE LUXIMON)
APPLICANTS/RESPONDENTS
V.
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM
RESPONDENT/APPELLANT
AND
THE IRISH HUMAN RIGHTS & EQUALITY COMMISSION
AMICUS CURIAE
YASWIN BALCHAND AND SHANDRIKA GOPEE AND CIERON LAKSH BALCHAND (A MINOR SUING BY HIS FATHER AND NEXT FRIEND YASWIAN BALCHAND)
V.
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT/APPELLANT
AND
THE IRISH HUMAN RIGHTS & EQUALITY COMMISSION
Judgment of Mr. Justice John MacMenamin dated the 24th day of April, 2018
1. This is a judgment concerning two appeals from the Court of Appeal delivered on the 15th December, 2016. In the first, “Luximon” [2016] IECA 382, the Minister appealed to that court against a judgment of the High Court [2015] IEHC 227. In the High Court, Barr J. determined that, in arriving at a decision under s.4(7) of the Immigration Act, 2004, the appellant Minister had erred in failing to consider the Luximon family’s Article 8 ECHR privacy and family rights in deciding whether to vary or renew their permission to be in the State. The Court of Appeal upheld the High Court judgment, although reversing Barr J. on one ancillary question which is not before this court. In the second appeal, “Balchand” [2016] IECA 383, Humphreys J. at first instance declined to grant judicial review of the Minister’s decision regarding the Balchand family applicants ([2016] IEHC 132), holding that, in making such a decision, the Minister did not have an ECHR duty. The Balchand family successfully appealed, and the Court of Appeal again held that the Minister, who is now the appellant to this Court in both cases, in making his decisions under s.4(7) of the Act of 2004, erred by failing to give consideration to the respondents’ Article 8 ECHR privacy and family rights in refusing to grant a renewal or variation of their permissions to remain in the State. The Minister submits that it was unnecessary to engage in such a consideration at that stage, and that an Article 8 assessment need only take place at what was characterised in this appeal as the final, “deportation”, stage of the procedure. For brevity and clarity, the Luximon appeal will be referred to as “Appeal A”; Balchand as “Appeal B”. The reference to “the Minister” in this judgment is to the holder of that office, as a designated person under the Ministers & Secretaries Act, 1924, as amended. Such reference does not relate to any particular holder of the office, but rather officials acting on the Minister’s behalf.
2. Ms. Daniye Luximon and Mr. Yaswin Balchand are both citizens of Mauritius. They arrived in Ireland in the year 2006 to avail of an administrative educational scheme set up by the State in 2001. Under that scheme, students were permitted to engage in part-time work, as well as undertake post-secondary level educational courses. By the time of this appeal, Ms. Luximon and Mr. Balchand had been in the State for some 11 years, their family members for a somewhat lesser, but nonetheless significant period.
3. In July, 2011, the government promulgated a new scheme which set explicit time limits on how long such students might remain in the State. This had significant effects on the respondents’ authorisation to remain here. The new scheme was entitled the “New Immigration Scheme for Full-time Non-EEA Students, registered in Ireland before 1st January, 2011”.
The Respondents’ Status within the State
4. The following observations are key in understanding the legal status of the respondents. First, they all entered this State lawfully. Their continuous lawful presence here up to 2011 must be taken as a given. Their situations are, therefore, different from those concerning short-term visitors, or entrants engaging in temporary employment, or asylum seekers, who will generally not have established links in, or to, the State. By logical extension, the respondents’ position is very different from that of unsuccessful applicants for asylum who may have exhausted all judicial review procedures. Secondly, by the time the relevant ministerial decisions were made in 2012, each respondent in this appeal had acquired many of the characteristics of long-term migrants, albeit subject to periodic renewal of their residency. Thirdly, the respondents’ legal status in the State was not altered as a result of some unlawful act on their part, but rather by an alteration in government policy. Finally, counsel for the Minister has submitted that these appeals may have a bearing on a significant number of similar cases. However, this judgment is based entirely on the facts as presented in the instant appeals. As such, whether this judgment has a bearing on other cases will depend on the individual facts of each such case. It is necessary now to move to the details of the present appeals.
Daniye Luximon and Prashina Choolun
5. Ms. Luximon has two daughters. Her elder daughter is not a party to these proceedings. Her younger daughter, Prashina Choolun, the second named respondent in Appeal A, is now in secondary education here. She, too, arrived in the State in 2006. Ms. Luximon engaged in a range of educational courses during her time here. She and her daughter have an established home in Dublin. Ms. Luximon lawfully obtained part-time work through the scheme and has worked for a number of years as a co-ordinator in a dental practice. Throughout her time in Ireland, she and her daughter have generally been a self-supporting family unit. With one exception, described later, she complied with all renewal requirements. There is no indication that there was any difficulty in renewing such permissions up to the year 2011.
6. On the evidence, Ms. Luximon and her daughter have over the years established significant private, family and social connections, in their home-area, in work and in education.
Yaswin Balchand, Shandrika Gopee and Cieron Laksh Balchand
7. Having arrived in 2006, Mr. Balchand was joined in 2008 by Shandrika Gopee, the second named respondent in Appeal B. The couple subsequently married. They now have a son, Cieron Laksh Balchand, born in 2009, who is in full-time primary education here. Their permissions were regularly renewed without difficulty up to the year 2011. Their son, Cieron, speaks English with his parents at home. Both adult respondents in this family unit are financially self-supporting and work in the hospitality and catering sector.
A Summary
8. This judgment first addresses the literal interpretation of the Act of 2004, and thereafter the manner in which such interpretation might, if necessary, be informed by Article 8 ECHR considerations. But, the following background circumstances are particularly significant.
9. The fact that the position of the respondents differs from a range of other categories of entrants to the State must be re-emphasised. Additionally, the respondents were not subject to any ongoing fact-finding administrative or quasi-judicial proceeding, such as those which apply in the State’s asylum/international protection system. It also bears re-emphasis that Ms. Luximon and her daughter, having lawfully entered the State, have now together been here for 11 years. By way of distinction to other categories of entrants to this State, Ms. Luximon was permitted under law to work part-time throughout the year, and to work full-time during vacation periods. Similar observations apply to Yaswin Balchand and Shandrika Gopee. All adult respondents earned their living by this work. When both Daniye Luximon and Yaswin Balchand were subsequently joined by family members, the State raised no objection. At the time Ms. Luximon and Mr. Balchand entered the State, they did not require visas. All the respondents see Ireland as their home country, and have established residences here. The adults each have children who might arguably hold individual rights to remain in the State, either by the fact of residence or by birth. In addition to collective privacy and family rights, the appeals also raise intra-familial issues. These observations, together with those made earlier, are of importance as in Balchand, the High Court judge described the respondents’ status (paras. 18-21), as “precarious”; I do not think this was an accurate characterisation.
10. The term “precarious” is undoubtedly used in ECHR jurisprudence to describe persons whose entitlement to be in the State is highly attenuated. (See, generally, Nunez v. Norway (App. No. 55597/09) [2014] 58 EHRR 17, at para. 70, page 535). An unsuccessful asylum seeker may come within that description. In Balchand, the High Court judge, in comparing the respondents’ status to failed asylum seekers, made reference to the judgments of this Court (MacMenamin J., Laffoy J., Charleton J.) in PO v. Minister for Justice [2015] I.R. 164. These judgments must be read in their entirety. To take one illustration, an observation at para. 26 of my judgment in PO, quoted in the High Court judgment in Balchand, should not be misunderstood as holding that an unsuccessful asylum seeker’s rights were “minimal to non-existent” when it came to a decision to revoke a deportation order. The judgments of this Court in PO hold that the Minister has significant duties under s.3(11) of the Immigration Act, 1999, and these duties arise under legal parameters. PO concerned the Minister’s discretion on application to revoke a deportation order made concerning an unsuccessful asylum seeker. Section 3(11) of the 1999 Act allows the Minister to amend or revoke a deportation order made under s.3(1) and (2) of the same Act. In PO, having referred to the relevant provisions of the Act of 1999, I pointed out at para. 15:
“… 15. It would be entirely wrong to conclude that, by reference to these provisions alone, and in operating under this regime, the Minister is at large in exercising her discretion. Firstly, it is necessary that the Minister have regard to the materials which have been furnished previously. She must then consider here only new facts, materials or circumstances. If there are truly new facts, materials or circumstances which could be material to an overall assessment of the position, the officials should take an overall view as to the circumstances, including those new matters addressed (see Smith & Ors. (Minors) v. The Minister for Justice & Equality [2013] IESC 4) (Unreported, 1st February, 2013). Furthermore, in making such decisions, the Minister is obliged to operate within the boundaries of natural and constitutional justice, and also to decide in accordance with the international obligations which have been incorporated into domestic law by the Oireachtas. The Minister is not entitled to act unconstitutionally. She must determine every application on its merits. This includes operating within the boundaries of the 1999 Act itself, and, more broadly, the Constitution, the European Convention on Human Rights, 1950 (“the ECHR”), as explained by the European Court of Human Rights, … and the principle of proportionality, all of which must be applied to the circumstances of the case. As Fennelly J. in TC v. Minister for Justice [2005] 4 IR 109 pointed out at paragraph 26 of his judgment:
“26. On its face, this provision confers a broad discretion, to be exercised in accordance with general principles of law, interpreted in the light of the Constitution and in accordance with fair procedures.”
The other judgments of the Court in PO are consistent with this interpretation. The decisions in PO, of course, arise in a different context, but did not provide a basis for concluding that the facts in Balchand mean that the respondents’ status should be factually comparable to that of a failed asylum seeker.
11. What is at issue in these appeals then, is not only the question of the respondents’ rights and status in the State, but as a corollary, the Minister’s duties towards these respondents, having regard to their status, when they made an application pursuant to s.4(7) of the 2004 Act. While the issue does not arise, even the fact that a person’s status might be “precarious” would not absolve the Minister from observance of duties of fairness. In considering the status of an asylum seeker in his judgment in Balchand, the learned High Court judge observed that, “in general, their private and family rights to remain in the State are minimal to non-existent, and do not need to be considered by the Minister at any stage of the process, because they simply do not reach the level of significance required to engage such consideration”. But this particular statement can only be read in the context of the more general observations as to rights to be found in the judgments of this Court in PO.
12. How should the respondents legal status best be characterised? Taking all the circumstances into account, I consider their status, at least up to January, 2011, could best be characterised as having been that of lawful, long-duration residents, whose continued presence in the State remained conditional upon a periodic renewable permission under s.4(7) of the 2004 Act by the Minister or immigration officer.
The New Scheme
13. In July, 2011, the conditions of the 2001 Educational Scheme were altered, after a process of consultation. It is unclear whether the 2001 scheme did actually contain any time limitation. Nonetheless, the 2011 alterations undoubtedly had an impact on applicants from non-EEA countries who had entered the State prior to 1st January, 2011. Whatever about the pre-2011 position, the new conditions certainly did impose time limitations. It is true, as the High Court judge observed in Balchand, that an earlier lack of formality can be administratively “tightened up”. But the question remained as to whether such new limits could have retrospective effect on these respondents’ applications for renewal or variation under s.4(7) of the 2004 Act.
14. The 2011 time-limitation on presence in the State consisted of an overall limitation of 7 years, and a shorter, 3 year limitation, for students involved in certain categories of educational courses. The Minister’s position was that, by virtue of these administrative changes, both Ms. Luximon and Mr. Balchand came within a category of what are now described as “timed out students”, and, absent obtaining a change in their residence and employment status, they were no longer to be permitted to remain in the State.
15. Both Ms. Luximon and Mr. Balchand originally received what are called “Stamp 2” student permissions. These allowed them to study and to work, and were renewed up to 2011. But, thenceforth, in order for them to remain, the new scheme required them to apply for, and obtain, “Stamp 4” permissions which would permit long-term residence. Their applications for “Stamp 4” status were unsuccessful.
16. The judgment turns now to the proper interpretation of the legislation under which the Minister made the decisions impugned.
The Immigration Act, 2004
17. While s.4(7) of the Immigration Act, 2004 is the primary focus point in this consideration, it is, of course, to be interpreted in its broader statutory context as part of the Act as a whole. One of the objects of that Act, identified in its long title, is to “make provision in the interest of the common good for the control of entry into the State, the duration and conditions of stay in the State, and obligations while in the State, of non-nationals…”. The references hereafter to a “non-national” adopt the definition contained in the Act itself, which refers back to the term “alien” within the meaning of the Aliens Act, 1935. This referred to a person who was not an Irish citizen, or a citizen of the United Kingdom. Citizens of E.U. member states also now enjoy a range of rights guaranteed under the Treaties and E.U. legislation.
18. The relevant parts of the text of the 2004 Act are to be found from s.4 onwards. This section moves in a series of logical steps, envisaging “scenarios”. Each deals with the position of “non-nationals” in different situations. Section 4(1) of that Act provides:
“4(1) Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this Act as “a permission”).”
This sets out the power of an immigration officer, and is a “point of entry” requirement governing entry to the State.
19. The section next imposes a correlative duty on non-nationals to present themselves to an immigration officer at such point of entry, and there to apply for permission to enter the State. (s.4(2)). The logical progression then moves to address, at s.4(3), a series of laid-down criteria whereby an immigration officer is entitled to refuse entry to a non-national at the point of entry, be it a port, airport, or otherwise. These criteria include there being evidence that a non-national may not be in a position to support themselves; failing to have a valid employment permit; being a person suffering from certain medical conditions; having been convicted of certain offences; being a person subject to a prior deportation or exclusion order; or being a person who the Minister has previously determined should not be permitted to enter the State by reason of the public good. (See s.4(3)(a)-(f)). An immigration officer may also lawfully refuse entry on the grounds that the non-national is not in possession of a valid passport or equivalent documents establishing identity and nationality. (s.4(3)(g)). Section 4(3) also permits an immigration officer to refuse entry of a non-national intending to travel from Ireland to the United Kingdom, whether immediately or not, and who would not qualify for entry into the United Kingdom. By their very nature, such decisions are regulatory, governing conditions of entry to the State. The operation of such powers is a fundamental aspect of State sovereignty.
20. Again, reflecting the objects in the long title, s.4(5) of the 2004 Act then addresses a more specific subject matter. It sets out conditions which may be applied to a non-national who arrives in the State to engage in employment, business or a professional activity. Thus, it provides at s.4(5)(c) that such a person arriving in the State shall, within seven days of entering the State “(i) report in person to the registration officer for the place in which he or she intends to reside” (Emphasis added), that such person shall thereafter produce a valid passport or other equivalent document establishing identity and nationality, and furnish information regarding the purpose of their arrival in the State. This can only be understood as a “post point of entry” conditional permission. In my opinion, this statutory terminology necessarily implies that the non-national in question has, by the time referred to, entered the State and remains within the State. Section 4(5)(d) provides that a “non-national” to whom the sub-section applies shall not remain in the State for longer than one month without the personal written permission of the Minister, or on the Minister’s behalf by an immigration officer.
21. Section 4(6) then deals with a somewhat different scenario. It addresses the nature of conditions and compliance applicable to non-nationals whilst in the State. It provides that an immigration officer may, on behalf of the Minister, attach permissions to a non-national’s passport regarding duration of stay and engagement in employment, business or a profession, as may be appropriate. A non-national is under a duty to comply with such conditions. It is clear that this sub-section also addresses non-nationals who are present within the State. Thus, the logical progression proceeds from “point of entry” criteria, and thereafter to conditions applicable to persons remaining within the State.
Section 4(7) of the 2004 Act
22. Section 4(7) concerns the procedure under consideration in this appeal. It provides:
“(7) A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefor by the non-national concerned.” (Emphasis added)
23. One cannot ignore the position this provision occupies in the progression described above. Prima facie, by its statutory location, content, and wording, s.4(7) may also be seen as dealing with an application to be made from within the State.
24. But, as part of a broader argument, counsel for the Minister submit in this appeal that the sub-section may be seen as applying also to such applications made from outside the State. This proposition, in fact, appears first in the High Court judgment in Balchand, and does not appear to have been canvassed earlier. Even at first sight, this is not an easy proposition to advance. But the submission, which is highly developed, must be carefully considered. Section 4(7), undoubtedly, envisages renewal or variation on application. In reply, counsel for the two sets of respondents, by contrast, jointly submit that by its wording and location in s.4, and by necessary implication, the provision addresses a category of non-nationals who are already within the State, and whose status may thereafter be subject to variation or renewal. They submit that there are no words in s.4(7) which suggest the non-national could or should place themselves outside the State for a renewal or variation, or which empowers the Minister to make any such stipulation. In rejoinder, counsel for the Minister is constrained to argue that the provision does empower his client to direct the respondents to leave the State, and thereafter to apply for renewal or variation from outside its borders. If necessary, counsel for the Minister submits that s.4(7) is to be read in conjunction with s.3 of the Immigration Act, 1999.
25. The question is whether there is anything in the Act of 2004 to suggest this was the intent of the legislature? The earlier legal decisions of this and other courts, which refer to s.4(7), do not canvass such a possibility because it simply did not arise in those cases.
26. Section 4(9) provides that a non-national, who fails to comply with the conditions regarding entry into, or presence within, the State for employment purposes, shall be guilty of an offence. This, too, plainly addresses the situation of a non-national who remains within the State’s boundaries.
27. Section 4(10) provides that, in performing functions under s.4(6), an immigration officer is to have regard to all the circumstances of the non-national concerned which are known or represented to that officer, and in particular, intended duration of the stay, family relationships, income, earning capacity, financial needs, obligations and responsibilities, the likelihood of compliance with proposed conditions and, later, other statutory entitlements to enter the State. But this provision has no bearing on s.4(7) of the Act, save that there is nothing in it envisaging application being made from outside the State. If anything, the opposite is true, as it bears out the “within the State” parameter of s.4.
28. Section 5(1) provides that no non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under the Act after such passing by or on behalf of the Minister. Presence in the State in contravention of s.5(1) is to be, “for all purposes”, unlawful presence in the State. (s.5(2)). It, too, is a “within the State” provision. The Act lays down penalties at s.13 by way of fines and imprisonment for breach of that law.
29. The nature and content of the ministerial decisions under challenge, which are discussed next, must be considered with this short outline of the statute in mind.
The Applications to the Minister
30. When Ms. Luximon came to apply for a variation of her permission in 2012, her current permission had expired by a period of some months. The new time-limitation was obviously an important consideration. Her solicitor applied for a variation of her status to “Stamp 4” permission in a letter sent on the 30th October, 2012. The solicitor set out very detailed factual grounds upon which, he contended, his client and her daughter had established ECHR private and family rights in the State. He requested that consideration should be given to those rights in the s.4(7) assessment. The application was refused within one week on the 5th November, 2012. Thereafter, Ms. Luximon was granted temporary student permissions to remain on in the State, but only to finalise her affairs. These extensions continued up to the 19th December, 2012. She was thereafter granted “Stamp 1” conditions, which expired in May, 2013. At present she still remains in the State, although without ministerial permission.
31. The position in the second appeal is similar. Mr. Balchand made his application through the same solicitor on the 19th October, 2013. The application-letter dealt with his status in the State, and also set out details of his established private and family connections. By contrast with Ms. Luximon, Mr. Balchand, in fact, did have a subsisting “Stamp 2” permission. The letter additionally contained an application for Mr. Balchand’s wife, Shandrika Gopee, to remain in the State. She, too, held a “Stamp 2” permission. In fact, Ms. Gopee’s permission did not expire until the 18th July, 2015. Nonetheless, the couple were both directed in the letter to leave the State by the 3rd December, 2013. The Minister accepts that the direction was erroneous in the case of Shandrika Gopee.
The Ministerial Decision & Requirement to Leave the State
32. The far-reaching scope of the Minister’s case is clearly illustrated by the fact that no point is taken regarding any factual distinction between Appeal A and Appeal B. The Minister, advisedly, makes no contention arising from the fact that Ms. Luximon had not renewed her permission within time. Therefore, it follows that the Minister’s position must be that, whether or not an application for renewal or variation was made within time, there was no duty upon him at that stage to enter upon any Article 8 assessment, and that the respondents were either to leave the State, or remain on to have their Article 8 rights assessed at the “deportation stage”. These two alternatives are considered below.
33. However, the explicit terms of the Minister’s decision-letter are themselves illuminating. Ms. Luximon was granted a time-extension to finalise her affairs. But, in the Minister’s response to her solicitor, she was directed as follows:
“… At the end of this period your client MUST leave the State, unless they have secured another form of immigration permission, e.g. a work permit, or green card. Upon leaving the State your client MUST provide this office with evidence of their departure. (e.g. a copy of Chinese Re-entry Stamp).
This evidence should be provided no later than 30 days after your client has left the State.
If evidence of your client’s departure from the State is not received by the due date, it is the intention of this office to issue a notification under the provisions of s.3(4) of the Immigration Act, 1999, (Notification to Deport), in respect of him/her.” (Emphasis added)
Obviously, the reference to the “Chinese re-entry stamp” was an administrative error. Notably, the decision-letter made no reference to any Article 8 rights. There was no reference either to Ms. Luximon’s daughter, who is the second named respondent in Appeal A. Mr. Balchand and his wife received a similar letter. While also allowing an extension of time to remain in the State, it, too, was no less mandatory in its terms. The recipients were either to obtain a new “stamp status”, or leave the State, or, as will be seen, by remaining, render themselves amenable to the deportation process.
34. The Minister’s case is that these letters formed just one part of a “two-stage” process, where any rights were to be considered only in the context of the later “deportation stage”, which consideration is to arise under s.3 of the Immigration Act, 1999. (See Bode v. Minister for Justice [2008] 3 IR 663, discussed later). I pause to observe that this submission does not sit easily with other aspects of the Minister’s case. One might unfairly say that counsel for the Minister is constrained to argue simultaneously that this process is both part of a continuum, but nonetheless also a “two-stage” process. The position is to be understood in the context that the two provisions relied on, s.4(7) of the 2004 Act and s.3 of the Act of 1999, are in pari materia. These submissions are not entirely reconcilable. Remaining in the State has adverse consequences, as considered below. But, what is the position if a person simply complies with the ministerial letter? Would this mean that the rights of the individual will only be considered when they are already outside the State and by which time those rights may already have been violated? Are the “two stages” to be seen as part of one continuous process, or two separate processes? If there are two distinct processes, how far can it be said that the provisions of the Acts of 1999 and 2004 are in pari materia? This, too, is considered later.
35. For present purposes, the two letters can only be understood as being, in themselves, a notification to each recipient that they were under a legal duty to leave the State, unless they had obtained an alternative permission, whether “Stamp 4” or otherwise. Absent such permission, it necessarily followed that their presence in the State would be “without permission”, and therefore unlawful. (See s.5 of the 2004 Act, discussed earlier). The respondents did not receive “Stamp 4” permissions. But the Minister’s position is further nuanced. His case is that the fact that there is a “two-stage process” seeks to reconcile the stages of the process on vires grounds, and in order to accord with the ECHR jurisprudence referred to later.
The Immigration Act, 1999
36. The long title of the Immigration Act, 1999, is to be contrasted to that of the 2004 Act. The object of the 1999 legislation is to make provision in relation to the control of non-nationals, to amend the Alien Act, 1935, and the Refugee Act, 1996, and to provide for related matters. In my view, the scope of this Act is not the same as the 2004 Act. The Minister’s case is that s.3 of 1999 Act and s.4(7) of the 2004 Act are to be seen as being in pari materia, that is, that the provisions have the same aim and subject matter, with one assisting in interpreting the other as part of one scheme of legislation. The two Acts undoubtedly address the legal status of “non-nationals”, but, in my opinion, they do so in quite different ways. The Act of 2004 can best be seen as regulating prima facie lawful entrants coming into the State; the Act of 1999, by contrast, concerns generally with the sovereign power of the State to deal with unlawful entrants to the State.
37. To say that, in law, “context is all”, is now almost itself a truism. But, if not “all”, “context” certainly is highly significant. In the case of the 1999 Act, the contextual subject matter is deportation, not regulation of persons within the State. Section 3(1) of the 1999 Act gives the Minister power to make deportation orders, and sets out a lengthy list of criteria as to when such an order might be made. Section 3(2) of that Act, as amended, permits the Minister to make a deportation order in relation to “… a person to whom leave to land in the State has been refused” (s.3(2)(g)), and “… a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State …” (s.3(2)(h)). (Emphasis added). The potential impact of this provision on an unsuccessful applicant under s.4(7) of the 2004 Act is an important consideration. Section 3(3)(a) of the 1999 Act states that, where the Minister proposes to make a deportation order, the person concerned is to be notified in writing of the proposal, the reasons for the decision and, provides, where necessary and possible, that the person in question is to be given a copy of the notification in a language that he or she understands. Thereafter, such persons are permitted 15 working days to make representations. (s.3(3)(b)). The section goes on, at s.3(6), to provide that before deciding the issue, the Minister is to take into consideration a number of matters, including representations made on behalf of the person. These relate to (a) age, (b) duration of residence in the State, (c) family and domestic circumstances, (d) nature of connection with the State, (e) employment record, (f) employment prospects, (g) character and conduct outside the State, including criminal convictions, and (h) humanitarian considerations. How would these considerations arise if a person in compliance with the latter had already left the State, and was constrained to apply for such consideration when the factual basis for such consideration would have already altered by leaving the State?
38. But s.3(5) pronounces that the provisions of sub-section (3), which deals with ministerial consideration of representations, are not to apply to certain categories of persons. These include those who have consented to a deportation order where the Minister is satisfied such person understands the consequences of the request to leave the State. Then the same sub-section contains the following: “(c) a person who is outside the State …”. (Emphasis added). I attach some significance to this last paragraph (c) of sub-section (5), in that the Minister’s case is that s.4(7) of the 2004 Act is to apply to persons who have “left the State”. It is hard to reconcile this interpretation with a consideration of continuing rights when those rights may have been violated in leaving the State. One cannot lose sight of the fact that, by contrast to a s.4(7) application for renewal or variation, a deportation order can be described as a “tailpiece” of a lengthy statutory process, very often beginning with a detailed asylum application, and application for international protection. (See FP v. Minister for Justice [2002] 1 IR 164, at 174).
39. I do not, in fact, consider one provision assists in interpreting the other for the purposes of these appeals. The focus of s.3, and in particular s.3(6) of the 1999 Act, is persons who may be unlawfully within the State’s borders. Alone, this point may not be entirely determinative of the in pari materia issue. But, taken with the “dysfunctions” just described, a further indicator is the fact that, along with the dissimilar objectives in the long title, there are no words to be found in s.4 of the 2004 Act which either explicitly, or by implication, “refer back”, in statutory terms, to s.3 of the 1999 Act, or provide that s.4(7) is to be read in conjunction with, or subject to, s.3. The Immigration Act, 2004, as a whole, makes no such reference either. (See, by way of contrast, the close nexus in subject matter between s.5 of the Refugee Act, 1996, and s.4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000, both of which expressly deal with the same subject matter as to conditions governing expulsion from the State. These provisions can be seen as truly in pari materia).
40. There are, it is true, some terminological “echoes” between the two sections. Section 3(3) of the 1999 Act envisages that a person who is to be the subject of a deportation order shall receive notification of that decision, which will include s.3(4), (a) a statement that the person concerned may make representations in writing within 15 working days of the sending to him or her of the notification; (b) a statement that the person may leave the State before the Minister decides the matter, and shall require the person to so inform the Minister in writing and to furnish the Minister with the information concerning his or her arrangements for leaving, and (c) contain a statement that the person may consent to the making of the deportation order within 15 working days of the notification. While some of this phraseology, undoubtedly, echoes the ministerial s.4(7) decision, there is nothing sufficient to render the two sections in pari materia.
41. In my view, the 1999 Act deals with persons who are unlawfully present in the State. The “in State” reference of s.3 is further demonstrated by s.3(9) of the 1999 Act, where, when the Minister is minded to make a deportation order, the notice served on the non-national requires the person concerned “to present himself or herself to such person, and at such date, time and place as may be specified in the notice, for the purpose of his or her deportation from the State”. But it is impossible to see how this, too, could possibly apply to someone who may have left the State.
42. The extent of the difficulty in the Minister’s position is further illustrated by considering the series of steps which logically and necessarily flow from the case the Minister must make. In order to be considered under s.4(7) of the 2004 Act at the “deportation stage”, it would, prima facie, be necessary for the respondents to be within the State; but to be within the State would, ipso facto, put the respondents in breach of s.4(6) and s.5 of the Act of 2004, for breach of conditions laid down by the immigration officer.
43. As Barr J. pointed out in his High Court judgment in Luximon, the respondents, under s.4(7) of the 2004 Act, might never even enter into the s.3 process because in order to do so, they would have to place themselves in the situation of “remaining on” illegally in the State. The respondents would then have to elect to make representations from within the State with the attendant risk that, should they be unsuccessful, they would be subject to a deportation order which would place a bar on their re-entering the State and could affect their ability to enter other E.U. states. As Barr J. went on to point out, the respondents would have no control over such a “s.3 deportation process”, it being entirely directed by the Minister. Counsel for the respondents characterise this choice as being a “Catch 22”, where, to choose the preferred or optimal course of action would unavoidably put the chooser in the wrong. I accept this submission. In this connection, it is hard to avoid thinking of the metaphor of being asked to place one’s hand in the lion’s mouth of truth. The magnitude of the “Catch 22” choice is that the very fact of a refusal under s.4(7) would itself trigger the possibility of deportation under s.3(2)(g) of the 1999 Act (cited earlier).
44. In summary therefore, I do not accept that the two provisions share a common matter, aim, or purpose. The case has been forcefully put. If the two provisions do not have a shared purpose, this raises the question as to whether the s.4(7) decisions, purporting to direct the respondents to leave the State, are intra vires. No explicit power to make such a direction is to be found in s.4(7), and there is no doubt that the exercise of that power is the effect of the ministerial decision-letters in these appeals, whether or not the respondents actually stay on in the State. Absent an appropriate assessment when the rights arise, it is no answer to say that the rights might be considered later, in light of the alleged position in which an applicants must then place themselves.
The Effect of the Ministerial Decision
45. The focus turns next to the content of the s.4(7) decisions made in these cases. In their terms, the letters were, effectively, a mandatory direction to leave the State. The recipients were placed under a legal duty of compliance, having obtained neither alternative permission nor a “Stamp 4” designation. The fact that the decision allowed for deferral in time makes little difference when the decision itself still stands against the recipient.
Legal Authorities
46. It is necessary to consider the legal authorities cited. A number of those referred to by this Court address the quite distinct situation of unsuccessful asylum seekers facing deportation. These are not ad rem. The Minister cites GAG v. Minister for Justice [2003] 3 IR 442, at 492, as being authority for the positions he takes on applications under s.4(7). But GAG was based on entirely different facts. The case did not concern s.4(7) of the Act. There, the appellants had no entitlement whatever to be in the State. The decision did not deal with persons who had lived lawfully in the State for a period of years, but rather, persons who, pre-accession to EEC membership, sought to take advantage of “Europe Agreements” regarding “associated states” in order to unlawfully enter this State. The appellants in GAG were persons who never had an entitlement to be within the State at the time of their appeal to this Court, or at any earlier time. In fact, in GAG, this Court held that if the appellants had been lawfully resident in the State, then their applications for establishment would have to be read from a different perspective.
47. The Minister places great reliance on Bode v. The Minister for Justice [2008] 3 IR 663, as outlining the power to make considerations at the deportation stage. But again the circumstances are quite different from the instant case. In Bode, the courts had to determine whether the Minister’s refusal of a father’s application under the IBC05 Scheme, made without any consideration of the rights of the Irish citizen child, and when consideration of the father’s entitlement had not reached the “deportation stage”, violated the constitutional and Convention rights of the child. The appellant was a non-national seeking to remain in the State. He had applied for a right of residence as a father of the Irish citizen child. This Court held the scheme was created by the executive power of the State, and was both generous and sui generis, as it extended rights to a range of parents and children whose status would otherwise have been uncertain.
48. But in these appeals, the legal rights of individuals have to be considered pursuant to s.4(7), that is, pursuant to the exercise of that statutory power. In Bode, this Court concluded that the IBC05 administrative scheme was to be seen as entirely separate from the Minister’s functions as carried out under the Immigration Act, 1999. On those facts, this Court held that the making of a deportation order under s.3 of the 1999 Act was a sufficiently wide-ranging process for the Minister to exercise his duty to consider the constitutional or Convention rights of the appellant. By way of further contrast to these appeals, in Bode, Denham J. observed that applicants who did not succeed in an application were in the same position as they would have been before applying under the scheme. In those circumstances, she held their rights could be considered under s.3(11) of the Act of 1999. On that basis, this Court held that the assertion of rights had been premature. In fact, s.4(7) of the Act of 2004 does not figure in that judgment.
49. The distinctions between Bode and the instant appeals do not end there. Not only was the status of the appellant in Bode one which was legally contingent, but, in addition, this Court held that there were fundamental deficiencies in the father’s evidence which attempted to prove that he had been in continued residence in the State for a required period. There is no such question here.
50. It is hard to conceive how these respondents, if placed outside the State, could successfully make submissions to the Minister for their Article 8 rights to be considered when, by virtue of placing themselves outside the State, their position would have altered, or been placed at naught, and the rights which they seek to assert would have, at minimum, been put at hazard.
51. The “self-defeating” effect of compliance with the ministerial letter is illustrated by the circumstances of Appeal B. If, in compliance with the terms of the Minister’s letter, Mr. Balchand had actually left the State, his wife and son would not have been under such a duty to leave at the same time, even though Mr. Balchand was providing financial support for them. In fact, the paradox is that the system as envisaged might itself operate in a manner which actually resulted in a violation of rights, even before there could be consideration of these rights. This would be neither lawful nor Convention compliant.
52. I would add here a number of further observations for completeness. The first concerns an authority where s.4(7) was quite recently considered by this Court. Counsel for the respondents have urged the Court to review the decision in Hussein v. Minister for Justice & Equality [2015] IESC 104, delivered by this Court, per Hardiman J. (Denham C.J., O’Donnell J., McKechnie J., Laffoy J. concurring).
(a) Hussein v. The Minister
53. Hussein, too, was based on a quite different set of facts from these appeals. The appellant had been convicted of the road traffic offence of driving without insurance. An immigration officer decided, under s.4(7), that he was not a person of “good character”. In Hussein, the appellant made the case that s.4(7) should be read as being subject to s.4(3) or s.4(10) of the 2004 Act, as otherwise, it was claimed, the sub-section would create an entirely unfettered and constitutionally invalid discretion. In rejecting that claim, this Court held, on the facts, that there was no basis for implying any statutory constraint at all on the Minister’s power under s.4(7) of the Act of 2004, but that the Minister’s duty nonetheless was to make a decision rationally and in accordance with the principles of natural justice. The gravamen of the decision in Hussein was to the effect that a decision made under s.4(7) of the Act of 2004 was not subject to the constraints contained in s.4(3) or s.4(10) of the Act. This Court held that there was no evidence that the Minister had fettered her discretion in the application of s.4(7) of the Act. The Court went on to hold that the power under s.4(7) was not of a legislative nature, but was a power to make a decision in an individual case, and was an exercise of executive power.
54. No case has been made out that the decision in Hussein was “clearly erroneous”. (Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260). I am not persuaded it is necessary to review the decision as having been wrongly decided. The decision arose in different circumstances, which gave rise to different considerations on different facts.
(b) Constitutional Considerations
55. Secondly, I take the opportunity to touch on a further issue which does not arise in the full sense. It derives from the manner in which the cases were framed from the outset, and ultimately decided by the Court of Appeal. The focus in the application-letter in Luximon was only on Article 8 rights, and did not raise constitutional private or family rights in any detailed way. For this reason, the Court of Appeal did not fully address these constitutional issues, and, for the same reason, this judgment focuses later on ECHR jurisprudence reflecting the main thrust of the respondents’ case. Some of the underlying constitutional considerations are outlined in “Immigration & Citizenship Law” (Stanley, Roundhall, 2017, Ch. 5-26) and (in an interesting and thought-provoking article footnoted in that chapter) in “Reading Between the Lines: The Search for the Legal Basis of Residency Permission Schemes for Non-Irish Nationals” (Casey, The Irish Jurist, Volume L111, New Series 2015, at page 162). The constitutional questions were also touched on by Cooke J. in the High Court, who quashed a s.4(7) offences decision essentially on classical reviewability grounds, in O’Leary v. The Minister for Justice, Equality & Law Reform [2013] 1 ILRM 509. The question of an exercise of an “absolute discretion” in the context of a grant of citizenship was also considered by this Court in Mallak v. The Minister for Justice, Equality & Law Reform [2012] 3 IR 297. Relying on East Donegal Co-operative Livestock Mart Limited v. Attorney General [1970] I.R. 317, and The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, this Court held in Mallak that it could not be correct to say that when “absolute discretion” was conferred on a Minister this implied that he was not obliged to have a reason; the rule of law required all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. The Court also held that the characterisation of the Minister’s discretion as “absolute” provided no justification for the suggestion that he was dispensed from observance of the requirements of the rules of natural and constitutional justice, as would otherwise apply. I go no further than to observe obiter that these appeals, might, potentially, have been considered by reference to constitutional rights identified under Article 41 of the Constitution, concerning the right to family life.
(c) Pleading Points
56. Thirdly, a number of “pleading points” were raised on both sides. I will not describe them in detail. The contentions were that the parties’ cases had not been sufficiently pleaded in the Statements of Grounds or of opposition. Suffice it to say that I consider the points raised as being of no merit. Each party knew the case they had to meet. Insofar as points “evolved” after the hearings at first instance, I view the developments as being iterations of points and grounds already pleaded.
Conclusion
57. Was the requirement for the respondents to remove themselves from the State intra vires s.4(7) of the Act of 2004? The power to direct removal is a significant power of the State, requiring explicit expression. As a simple matter of statutory interpretation, s.4(7) cannot be interpreted in the manner contended by the Minister. Furthermore, such an interpretation would be contrary to public policy by placing applicants in an invidious position where applicants would risk placing themselves in a situation of illegality. This cannot be lawful, or accord with public policy. The Minister claims the power to direct leaving the State arises by necessary implication, of s.3 of the 1999 Act, which is in pari materia. The State, undoubtedly, legislated as to how this power was to be exercised in the Immigration Act, 1999. No such power is express or implied in s.4(7) of the Act of 2004. In my view, the two provisions are not in pari materia, and cannot be construed together. For each of the reasons outlined earlier, therefore, I would hold that the decision-letters were ultra vires s.4(7) of the Act of 2004. A consideration of the ECHR jurisprudence on Article 8 ECHR private and family rights supports this conclusion. Even if the Minister had such a power under s.4(7), it would still have been necessary for him to give consideration to Article 8 ECHR rights, as is now explained.
ECHR Jurisprudence
58. The provisions of ss. 2 and 3 of the European Convention on Human Rights Act, 2003 are the starting point in this part of the consideration. Under s.2 of that Act, courts are enjoined in that interpreting and applying any statutory provision or rule of law, as far as is possible and subject to the rules of law relating to such interpretation and application, they should do so in a manner compatible with the State’s obligations under the Convention provisions. Under s.3 of the 2003 Act, every organ of the State is, subject to any statutory provision or rule of law, to perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
59. In my opinion, whether the Minister’s decision be seen as “statutory” or “executive”, his decisions in these cases, made as an “organ of State”, under s.4(7), were the exercise of a “function”. Thus, in making the decisions in these cases, the Minister was under a duty to act in a manner compatible with the Convention provisions. The manner in which ECHR provisions are to be interpreted and applied is set out in the established jurisprudence of this Court, and requires no repetition.
60. Article 8 ECHR protects private and family rights of persons subject to considerations as to what is “legitimate and necessary” in a democratic state, and what is “in accordance with law”. The right to “private life” can involve the social and community ties in the State.
61. It is true that, as the Minister submits, the tenor of the ECtHR case law does allow contracting states some margin of appreciation in the implementation of orders, such as those in question in these appeals. The nature of the decision under consideration can be relevant. In some of the ECtHR case-law on expulsion and the right of residence, that court did allow for a distinction to be drawn between legislation on the basis of the nature of the application and the nature of the decision. Some of these decisions related to the question of residence, not expulsion per se.
62. Counsel for the Minister draws attention to MRA v. Netherlands, (Application No. 4685/07, 12th January, 2016, where the ECtHR referred, without criticism, to The Netherlands courts’ refusal to entertain reliance on Article 8 ECHR rights by an asylum seeker, having regard to the fact that, in Dutch law, there was a strict separation in the system between an “asylum-based” application for a residence permit, and, on the other hand, a “regular” application for a residence permit. In MRA, the ECtHR did not appear to question the right of state-authorities to exclude the consideration of Article 8 ECHR rights when assessing a particular type of application for a residence permit. It is true that in Yildiz v. Austria, Application No. 37295/97, 31st January, 2003, the Court of Human Rights held on the facts before it that the question of whether the applicants had established a private and family life within the meaning of Article 8 would be determined in the light of the position when the residence ban in question became final. (See para. 34). In arguing for the propriety of a decision at the “deportation stage” the Minister relies on Maslov v. Austria, Application No. 1638/03, 23rd June, 2008, para. 61, to the same effect.
63. Counsel for the Minister has directed us to the recent ECtHR decision of Abuhmaid v. Ukraine, Application No. 31183/13, 12th January, 2017, in order to demonstrate that in that case the ECtHR held Article 8 ECHR did not impose a positive obligation on the State to consider rights in the context of that particular case. But one cannot ignore the exhaustive range of procedures and appeals which were available to that applicant in the Ukraine. In the judgment, the ECtHR had to assess whether or not the Ukrainian legal system provided for a procedure enabling the applicant effectively to defend his private life interests, insofar as they were affected by the uncertainty of his status, as a Palestinian national, with established connections, to stay in the Ukraine.
64. The court stated, at para. 118:
“The Court notes that in certain circumstances Article 8 may be read as imposing on States a positive obligation to provide an effective and accessible means of protecting the right to respect for private and/or family life. … To a certain extent, the protection afforded under Article 8 in this respect may overlap with specific guarantees of Article 13 of the Convention. In particular, both provisions require a domestic remedy allowing the competent national authority to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to such an obligation.”
65. The court went on, at para. 119:
“Turning to the present case, the Court considers that respect for the applicant’s private life in combination with the requirement of effective domestic remedies entailed a positive obligation on the respondent State to provide an effective and accessible procedure or a combination of procedures enabling him to have the issues of his further stay and status in Ukraine determined with due regard to his private-life interests. …” (Emphasis added)
66. But, having examined the exhaustive procedures which the applicant had availed of in the Ukraine, the ECtHR held, at para. 126:
“Having regard to all the above procedures and circumstances cumulatively and also to the fact that the applicant can still have access to different domestic procedures which might result in the regularisation of his stay and status in Ukraine …, the Court concludes that it cannot be said that the respondent State disregarded its positive obligation to provide an effective and accessible procedure or a combination of procedures enabling him to have the issues of his further stay and status in Ukraine determined with due regard to his private-life interests. It follows that there has been no violation of Article 13 taken in conjunction with Article 8 of the Convention.” (Emphasis added) In isolation, these observations might seem to favour the Minister.
However, the ECtHR had said earlier:
“Having regard to the guidelines of the Committee of Ministers concerning the security of residence of long-term migrants, it can be argued that, essentially, the decision-making process should have been focused on two principal questions: (i) whether the applicant should be allowed to stay in Ukraine given his private-life situation, notably his social ties to the country, and the possibility of maintaining those ties elsewhere, and (ii) whether there were any legitimate grounds outweighing his private-life interests.” (Emphasis added)
67. This jurisprudence cannot assist the Minister, for the reason that the ministerial decisions here cannot be seen as simply a “first stage”. The decision-letters were clear: they placed a demand upon the recipients to leave the State, even if there could be some deferral. As will be seen below, even if an expulsion order is not in immediate contemplation, Article 8 considerations have, in fact, been held to arise even in relation to rights of residence. One cannot ignore the incongruity in seeking to draw a distinction between the s.4(7) ministerial decisions and a deportation process under s.3 of the 1999 Act, when the effect of compliance with the requirements of the decision would be to place the recipient of the order “outside the State” with the self-defeating consequences referred to earlier. It is noteworthy, too, that the basis of the ECtHR decisions relied upon by the Minister concern procedures to be adopted by a State while the applicant remained within that State.
68. In fact, it may be doubted whether Abuhmaid truly assists the Minister. At para. 74 of that decision, the ECtHR held that, under Ukrainian law, express provision was made for foreigners and stateless persons to seek leave to permanently reside in the State. That procedure was in addition to a procedure for forcible expulsion. The applicant in Abuhmaid, in fact, had a pending application for asylum, and was entitled to remain in the Ukraine pending the determination of that application. The facts are very different from the instant cases. But, even on those authorities, I could not conclude that a scheme, where “eligibility” to apply for consideration would be predicated on illegality of an applicant’s status in the State, could ever be Convention-compliant.
69. As Yildiz and Maslov point out, the factual circumstances must be judged by reference to those existing at the date of the relevant decision. However, those decisions do not address the question of how an authority is to identify whether a decision engages Article 8 in a changed situation, such might arise under the new scheme.
70. In fact, there are other authorities which place significantly less emphasis on the imminence or immediacy of the threat of expulsion. In this, a question which arises is whether what was at issue in these cases was merely a “negative” obligation on the State, or a “positive” obligation to provide an effective and accessible scheme for vindicating Article 8 rights? How then should s.4(7) of the 2004 Act be interpreted in accord with ECHR jurisprudence?
71. A simple determination that the respondents were “timed-out” students could not conclusively determine all the issues which the Minister had to consider in their cases. I consider such a finding should have been, rather, the proper starting point. I would add here that no apparent consideration was given to “the best interests of the child” jurisprudence of the Court of Human Rights. This has not been the main thrust of the respondents’ submission in this case. In view of the decision reached, it is unnecessary to consider this further.
72. There is clear jurisprudence of the Court of Human Rights which is significantly more on point. There is case law which establishes that personal rights may be engaged and require consideration even in certain cases of exceptional residence, as opposed to expulsion applications, and even in the absence of a removal decision. I certainly do not go so far as to say that there is a “right” to regularise illegal status.
73. There are Chamber decisions such as Tuquabo-Tekle v. The Netherlands, Application No. 60665/00, 1st December, 2005, which concerned an application for a visa to allow family reunification to take place in The Netherlands. In that decision, the ECtHR held that the essential object of Article 8 was to protect the individual against arbitrary action by public authorities. The court went on to state that, in such cases, there might, in addition, be positive obligations inherent in the context of Article 8 respect for family life. The ECtHR pointed out that the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definitions.
74. In Sisojeva v. Lativa, Application No. 60654/00, 15th January, 2007, the First Chamber of the ECtHR, in a judgment dated the 16th June, 2005, initially held that the failure to regularise the residence status of the applicants, who had resided in Lativa for a long period, amounted to a violation of Article 8. By the time the matter had gone to the Grand Chamber, the issue had been resolved. The First Chamber had pointed out earlier that “no formal deportation order has been issued in respect of the applicants.” It reiterated, however, “that Article 8, like any other provision of the Convention or the Protocols thereto, must be interpreted in such a way that it guarantees not rights that are theoretical or illusory but rights that are practical and effective …”. (authorities cited).
75. The Chamber decision in Sisojeva laid emphasis on the proposition that, not only was there an obligation which compelled the State to abstain from interference with private life, but that, in addition to this negative undertaking, there might be positive obligations inherent in an effective respect for private or family life. Thus, in that case, the First Section concluded that, it was not enough for the host State to refrain from deporting the person concerned: it must also, by means of positive measures if necessary, afford him or her the opportunity to exercise the rights in question without interference.
76. But, later, in the Grand Chamber decision, Jeunesse v. The Netherlands, Application No. 12738/10, 3rd October, 2014, the ECtHR specifically addressed the rights of an applicant to a “residence permit”, for a woman who had, for a very considerable period, been residing in The Netherlands without legal entitlement, who was taking care of her children who were Dutch nationals, and where her family and private rights were clearly engaged. The Grand Chamber observed:
“The question to be examined in the present case is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to Article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory. The instant case thus concerns not only family life but also immigration. For this reason, the case at hand is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention.” (Emphasis added)
77. In Jeunesse, the applicant established her family life in the Netherlands over a period of time, during which she had no permission to be in the State, although she had Dutch children. Nonetheless, the Grand Chamber held that, despite the absence of any permission to be in the State, there had been a violation of Article 8.
78. Tuquabo-Tekle and Sisojeva, seen through the lens of Jeunesse, establish that there may be a positive obligation to establish an effective and accessible procedure. The scheme, as envisaged by the Minister, falls short of this standard. It does not provide for an effective and accessible procedure for the reasons outlined earlier in this judgment. I emphasise that these observations are confined to the circumstances of these appeals, in particular the factual background described earlier. These appeals are not asylum or international protection cases.
79. The deficiency in the Minister’s case is rendered more marked by reference to Da Silva v. The Netherlands [2007] 44 EHRR 72. The circumstances of this Chamber decision come very close to the facts in these appeals. The case concerned The Netherlands authority’s refusal to grant a residence permission to the Brazilian mother of a Dutch child, who had been the subject of a court custody order in The Netherlands in favour of the father. At para. 22 of the Chamber judgment, it held:
“Despite having received a letter dated 8th July 1999 from the local police informing her that she had to leave The Netherlands within two weeks, the first applicant remains in The Netherlands. She works from Monday to Friday. Rachel (the child) stays with her at the weekend, and with her paternal grandparents during the week.”
80. In Da Silva, the applicant received a letter requiring her to leave The Netherlands, by way of contrast to expulsion. As it happened, this was subject to a deferral for a period of weeks, in order to allow the relevant respondents to finalise their affairs. It is undoubtedly true that in Da Silva, the ECtHR referred also to expulsion in paras. 42 to 45 of its decision. But this is a distinction without a difference in light of the mandatory or imperative nature of the decisions in these appeals. There is no doubt that Da Silva concerned a positive obligation to grant residence, and the Court of Human Rights held that there was a violation of Article 8. It may be said that these “residence” cases are based on exceptional facts, but they show that the tenor of the jurisprudence may go as far as encompassing cases of removal from the State, such as those which arise in these appeals.
81. A similar preparedness to look “upstream” in renewal or variation decisions can be found in the jurisprudence of the United Kingdom Supreme Court. (See, inter alia, Patel v. Secretary of State for the Home Department [2013] UKSC 72, at para. 29, where Lord Carnwath referred, without disapprobation, to the “developing jurisprudence of the Upper Tribunal”, which had moved beyond the proposition that human rights only arose in removal decisions, “to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law…”. (cf. also Pankina v. Secretary of State for the Home Department [2010] EWCA Civ 719)).
82. I conclude from this survey that, even if prima facie intra vires, the Minister’s “function” under s.4(7) should have been performed in accordance with the clear tenor of the ECHR jurisprudence. The provision would fall to be interpreted in light of that jurisprudence. Thus, a consideration under s.4(7) should have been carried out having regard to Article 8 ECHR rights where necessary at the time of that assessment, and at a time when the respondents remained within the State. This was not done. The section was not, therefore, being applied, or operated, in a manner compliant with s.3 of the 2003 Act.
Conclusions
83. This judgment addresses only the facts in these appeals: whether other cases are potentially affected does not arise. These appeals concern only the respondents who lawfully entered the State a number of years ago, and remained here without objection until after the year 2011. On a simple textual analysis, I conclude that the manner in which the Minister sought to utilise s.4(7) of the Act of 2004 in these cases was unlawful. I would affirm the order of the Court of Appeal on the grounds set out in this judgment. The impugned decisions should be quashed. There is no statutory basis for making such ministerial decisions to be found within the text of s.4(7) of the Act of 2004, or elsewhere in the Act. The Minister’s interpretation of the Act, and its consequences, would be contrary to public policy, and might well necessitate that applicants under the section, be constrained to act in an unlawful manner, or, by virtue of applying, be forced to conduct themselves in a manner which would violate their Article 8 rights as members of family units.
84. Furthermore, if he had interpreted s.4(7) in compliance with ECHR jurisprudence, the Minister would have been under a duty in these cases to assess whether Article 8 Convention private and family rights were capable of being engaged at the s.4(7) “consideration” stage. These rights were not considered, and in law should have been. In my view, the ministerial decisions or notices served on the respondents, in fact, had the effect of expulsion orders. Their consideration required the assessment of private and family rights. The respondent families legally entered this State. Such rights as may have arisen were acquired during lawful residence in the State. Their long-term residence, although conditional, required that consideration should have been given to their Article 8 rights in the s.4(7) consideration for variation or renewal of their entitlements. The respondents were not simply “visitors”, or short-term entrants to the State, or persons who had no entitlement to be here at all. These cases are very different from those other categories of persons. The factual basis of the respondents’ status required consideration of Article 8 rights when the Minister was considering renewal or variation decisions concerning them.
85. It is necessary to emphasise, however, the Minister was, and is, entitled to impose conditions on entry to the State. The terms “renewal” or “variation” in s.4(7) must also imply that the Minister may lawfully determine that there is, or has been, non-compliance with conditions laid down by the Minister, and that, where warranted, he should not renew permission. He is entitled to set time limits on persons remaining in the State. The scope of this judgment must not be extended beyond its intent. The Minister was here performing a statutory function. This fact alone in itself plays a role in the interpretation of s.4(7) of the 2004 Act.
86. The judgment affects only the respondents’ entitlement to Article 8 consideration when the ministerial decision was to be made; it does not determine the outcome of such decision-process in this, or any other case. What weight is placed on Article 8 private and family-life criteria is a matter for the Minister. Furthermore, for the future, in circumstances similar to those arising here, it would be unreal and unnecessary for the Minister to have to make more than one such decision on Article 8 private life and family rights. The State, and the Minister, are entitled to control, regulate, and impose conditions upon those who enter the State and seek to remain within the State’s borders. There is nothing to prevent a Minister lawfully applying criteria as to “reckonable periods”, for the purposes of establishing citizenship. Insofar as ECHR issues arise, what is in issue, and what is only determined here, is simply that for these respondents’ Article 8 rights were at least engaged, and that there should have been a consideration of such rights in the s.4(7) decisions.
87. For the reasons outlined in this judgment, I would propose the appeal be dismissed.
