CHANGE OF STATUS – LUXIMON JUDGMENT

On 20th March 2015, judgment was delivered in the High Court Judicial Review case of Danibye Luximon & Another v The Minister of Justice and Equality. The case focused on the decision of the Minister who refused the applicant’s permission to remain in the State on the basis of change of status application. The principal issue raised in this case was the Minister’s duty to consider the constitutional and ECHR rights of the applicants when making a decision on their representations/submissions under section 4(7) of the Immigration Act 2004.

 
The first named applicant, Ms Luximon, came to Ireland in July 2006. She entered the State to pursue a course of studies and was registered on Stamp 2. She was employed under the stamp 2 conditions from the time she arrived in the State. Ms Luximon’s two minor daughters joined her in the State. Ms Luximon’s permission to reside as a student expired in June 2012.

 
The Minister introduced a new student policy on 1st January 2011 that non-EEA national students can only reside in Ireland for a maximum period of seven years. A transitional arrangement was introduced for those who came to the State prior to 1st January 2011 and who wished to remain beyond the seven-year rule. They were granted a brief extension of their permission to apply for a work permit. Ms Luximon availed of this permission to apply for a work permit. The work permit application was refused in August 2012 because her permission to reside in the State had expired. She made a further application in October 2012 to the Minister to permit her to remain on Stamp 4 conditions.

 

Her legal representatives argued that her previous employer was willing to offer her employment and she was fully integrated in the State since 2006, having formed strong connections within her local community and she desires to contribute to the economy. They further argued that her minor daughters were well-settled in the State and the best interests of the children should be considered by the Minister under Article 8 of the European Court of Human Rights. Ms Luximon was however granted brief student permission until December 2012. Despite the submissions of Ms Luximon’s Solicitors, the Minister made a decision on 26th June 2013 and refused to grant her Stamp 4 permission. Ms Luximon subsequently instituted judicial review proceedings against the Minister’s decision.

 
The High Court considered whether or not the Minister should take into account the constitutional and ECHR rights of the applicants. The court also considered the matters set out in Section 4(10) of the Immigration Act 2004 in respect of an application made under section 4(7) of the Immigration Act 2004, which states that the Minister has discretion to renew or vary an immigration permission granted to a non-national in the State.

 
The High Court held that the Minister had failed to consider the applicants’ constitutional and ECHR rights and therefore had failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by not publishing guidelines of the criteria the Minister considers when making a decision on section 4(7) applications. The Minister’s decision was quashed by the High Court.

 
We believe this decision will have a significant impact on the level of assessment that must be carried out by the deciding offices in Section 4(7) applications. Until now, the Minister has often deferred all considerations of the applicant’s family rights under the Constitution and the ECHR to the humanitarian leave to remain application pursuant to Section 3 of the Immigration Act 1999. However, in practice this means that an applicant would have to risk receiving a deportation order in order to have their fundamental family rights assessed. We consider this judgement to be a very positive step forward in recognising the fundamental nature of family rights in immigration.

 
Bola Fowokan
Brophy Solicitors

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