Change of Immigration Status Applications – Part 1

The Minister for Justice has recently published general guidelines on who is permissible to apply for a change of immigration status.

The recent guidance states that it is only possible to apply for a renewal or variation in immigration permission under Section 4(7) of the Immigration Act 2004 when the applicant has a valid current permission to reside in the State.

However, for many years the Minister has been accepting and determining applications for Change of Status under Section 4(7) both from documented and undocumented persons. In the last 12 months or so, the Minister has amended this policy, and now indicates in the decision that the application is refused on the basis that the undocumented person may leave the State and apply for visa to return, or pursue a humanitarian leave to remain application through the Section 3 deportation process.

Although it is clearly stated on the INIS website that the Minister is not accepting Change of Status applications under Section 4(7) from persons who are undocumented, in practice such applications are still being accepted.

Therefore, the position around these applications is very unclear at the moment and clarity will be provided after a decision is held from the hearing of Danibye Luximon & Another v The Minister of Justice and Equality in the Court of Appeal in June 2016. We have outlined the details of this High Court decision in previous blog posts.

In summary, the Applicant in the Luximon case was a timed-out student, undocumented at the time of the application, and was applying to change to Stamp 4.

The applicant in this case was successful in the High Court arguing that the Minister’s refusal was unlawful because the Minister failed to take into account relevant considerations when making her decision in respect of the applicants’ s.4(7) application, namely, any rights the applicants may have regarding personal and family rights under Article 40.3 and Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights; and secondly, because the Minister failed in her obligation to publish the policy in relation to the criteria that will be taken into account by the Minister or an immigration officer when making a determination in respect of a s.4(7) application from a timed out non-EEA student for a change of immigration permission from Stamp 2 to Stamp 4 permission.

The Minister appealed this High Court decision to the Court of Appeal and we look forward to the Court of Appeal hearing in June 2016. The future effects of this decision are far-reaching and will have significant consequences for undocumented person’s rights to remain in Ireland. The decision will affect the way in which applications under s. 4(7) are processed. In addition, the court’s finding that the Minister is legally obliged to publish the criteria that will be taken into account by the Minister when determining a s. 4(7) application from timed-out non-EEA national students who wish to obtain a stamp 4 residence permission in the State will affect a large number of applicants.

BROPHY’S IMMIGRATION TEAM

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