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THE SUPREME COURT has ruled that the Minister for Justice should take account of an individual’s private life in certain immigration cases, calling any decision taken without doing so “unlawful”.

The five-judge panel also criticised an illogical “Catch 22″ process that some migrants needed to go through remain in the country.

The ruling was based on two separate cases concerning two Mauritians who had arrived in Ireland 11 years ago under student visas. The court said they were self-supporting and viewed Ireland “as their home country”.

The court emphasised that the order for them to leave the country came about not because of “an unlawful act on their part, but rather by an alteration in government policy”.

In 2011, the government made a decision to put a time limit on non-EEA student visas in Ireland (the EEA is all EU countries, Iceland, Lichtenstein and Norway), and applied it retrospectively to these two students from Mauritius.

The court found that the Minister (ie, the government) was obliged to give consideration to the students’ personal lives when deciding cases, and that the decision to refuse visas without doing so was “unlawful”.

“These [private and family rights] were not considered, and in law should have been.”

The Supreme Court stressed that this judgement was particular to this case, which concerned migrants who “lawfully entered the State a number of years ago, and remained here without objection until after 2011″.

The case was brought to the High Court in 2015 by the two students to appeal the immigration case decision made by the Department of Justice. After the High Court ruled against the Minister for Justice, it then brought the case to the Court of Appeal and to the Supreme Court, where it’s been dismissed in both cases.

Who are these students?

The first case concerns Daniye Luximon and her daughter Prashina Choolun, who both arrived in Ireland lawfully in 2006.

Luximon and her daughter live in Dublin; her daughter is in secondary school and she is a coordinator in a dental practice.

The second case concerns Yaswin Balchand who arrived in 2006, his wife Shandrika Gopee, and their son Cieron Laksh, who was born in 2009. Their son is in primary school and speaks English with his parents at home.

The Supreme Court said that they were “lawful, long-duration” residents, saying that it wouldn’t go so far as to describe their status in the country as “precarious” (as the High Court had, despite ruling in favour of the two families).

Since 2006, Luximon and Balchand had been on visas that allowed them to study and work in Ireland. After the government policy change in 2011, they applied for a new type of permission which would give them long-term residency, but their applications were refused.

As a time limit had been placed on how long non-EEA students could remain in Ireland, the Minister decided that Luximon and Balchand were “timed out students” and were no longer allowed to remain in the State.

Without considering their personal situations or family statuses, the Department of Justice wrote to the students saying that they were to leave the country.

Although this is not a deportation order, the Supreme Court ruled that the letter “had the effect of expulsion orders”, and so required their personal situations to be considered.

Administrative errors

In one of those letters to Luximon, the Minister wrote:

At the end of this period your client MUST leave the State, unless they have secured another form of immigration permission.

The letter also said that the student “MUST provide evidence of their departure (eg, a copy of Chinese Re-entry Stamp)”. The Minister later clarified that the reference to a Chinese re-entry stamp was an administrative error.

In the Balchand case, the letter from the Minister said that Shandrika Gopee and her husband were to leave the country by 3 December 2013, but Gopee had permission to stay in the country until 18 July 2015. The Minister also accepted that this was a mistake.

The ‘Catch 22′ process

The court said that the Minister’s argument that the personal details of the applicants would be considered later in the appeals process was illogical and inconsistent, and said that it should form part of the considerations from the start in cases such as these.

It was because of this illogical stance that left those wishing to appeal the rejections to their applications to remain with “a Catch 22 choice”.

As the judgement explains, in order to apply to remain in the country, “it must be necessary for the respondents to be within the State, but to be within the State” after receiving the Minister’s letter directing them to leave “would put the respondents in breach of conditions laid down by the immigration officer”.

…They might have to place themselves in the situation of ‘remaining on’ illegally in the State.

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 that would place a bar on their re-entering the State and could affect their ability to enter other EU states.

A ‘hostile’ system

The Migrant Rights Centre Ireland (MRCI) welcomed today’s judgment.

Its legal officer Jane O’Connell said that “the court emphasised the need for fairness and transparency in Ireland’s immigration policies”.

There is no excuse not to treat people with dignity and respect in the immigration system. A major policy change was introduced in 2011 with little consideration to people who had already been studying and working in Ireland for a long time.

No consideration was given to the lives these people had built in Ireland. There is no reason for the system to be so hostile to ordinary students, workers and families.

She said that although it wouldn’t have a blanket effect on all immigration cases, it could lead to a “move towards a more humane immigration system in Ireland”.

“We commend both families involved – it takes great bravery to go up against the State, particularly as a migrant.”

In a statement to TheJournal.ie, the Justice Department said:

“The Supreme Court judgement in this complex case is only recently to hand. The Department of Justice and Equality will require some time to examine and assess its implications in greater detail in conjunction with the Office of the Attorney General.”