Change of Immigration Status Applications – Part 2

Following on from last weeks’ immigration blog which focused on applications for change of status pursuant to s.4 (7) Immigration Act 2004 from person’s whose immigration permission has expired and have become undocumented. This week’s blog focuses on person’s applications for a change of status that never had any permission to enter the State in light of the recent judgement of Juliana Dike and Doris Duru v. Minister for Justice and Equality. The facts of this case are as follows:

The applicant in this case is a Nigerian national and is the mother of a naturalised Irish citizen daughter, who is in full time employment in the State, who is married and her husband is an Irish citizen. They have four children all of whom are Irish citizens.

The applicant arrived in the State in December 2006 without a visa. She travelled to the UK from Nigeria on a six month visa and then travelled to Ireland from the UK.

The applicant made an application for residence based on her dependency on her Irish citizen daughter. This application for an extension of visitor permission was refused on the 12th January 2015 on the basis that the applicant had entered the State without permission and wilfully disregarded the immigration controls of the State by not abiding by the entry visa requirements and remained in the State unlawfully for eight years. The applicant must either leave the State and apply for a visa through her Embassy or apply for permission to remain in the State pursuant to s.3 Immigration Act 1999. The decision also stated that the applicant could not rely on the INIS Family Reunification Policy Document as the document only covers persons who already have immigration permission, such as a student, and their ability to apply for a change of permission while in the State. It then goes on to state that in other instances “the general policy should be to refuse to accept applications from within the State except in cases where there are special humanitarian circumstances.” The applicant in this case did not put forward any special humanitarian circumstances.

Leave was granted to challenge the refusal by way of judicial review on the following grounds:

  1. The Minister has acted irrationally and /or disproportionately and /or in breach of natural and Constitutional justice and fair procedures and/or unlawfully fettered her discretion and/or acted in breach of the applicants legitimate expectations and/or the terms of the Family Reunification Policy Document in refusing the applicant residency permission.
  2. Although the applicant failed to put forward compelling humanitarian circumstances, the Minister unlawfully fettered her discretion in failing to have regard to all the circumstances of the case.
  3. The Minister did not consider her application in light of Article 41 of the Constitution or Article 8 ECHR family and private life rights and the applicant’s right to family life in the State was not respected.

The Judge found in favour of the State’s argument that it was sufficient that the applicant would have her family rights fully considered under Section 3 Immigration Act 1999 or alternatively she can leave the State and apply for a visa through the Embassy.

We submit this case is distinguishable from many other cases in that the applicant never had any Irish immigration permission, which differs from applications from people who have entered the state on a tourist visa/ alternative/lesser immigration permission. Furthermore, the judge highlighted that the applicant outline any “special humanitarian considerations” that would allow her application for change of status to be considered from within the State.

The position in relation to the Ministers decision to not fully consider applications under Section 4 (7) Immigration Act 2004 from persons who do not hold any immigration permission will be clarified in the Luximon decision in June 2016.

BROPHY’S IMMIGRATION TEAM

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