Immigration Status - Matter on the Commencement 14 February 2017

An Leas-Chathaoirleach:  welcome the Minister of State, Deputy Finian McGrath, to the House.

Senator Ivana Bacik: I welcome the Minister of State and thank him for coming to the House to deal with this question. In light of the findings of the Court of Appeal on the rights of non-EEA nationals who were in Ireland as students before 2011 and who wish to continue to stay and work here, I would like the Minister for Justice and Equality to state how many cases are awaiting her decision and to make a statement on the issue.

I am referring specifically to the decision of the Court of Appeal, as issued on 15 December 2016, in the case of Balchand and others v. the Minister for Justice and Equality and others. In her decision, Ms Justice Finlay Geoghegan said that the refusal of an application for permission to remain made on behalf of two Mauritian individuals, whose child was born here after they had originally come here as students, potentially interfered with the applicants' right to respect for private and family life under Article 8 of the European Convention on Human Rights. According to the Court of Appeal ruling, the Minister is "obliged to consider" these rights before making a decision on the application for permission to stay here. Ms Justice Finlay Geoghegan said that the Minister, "was obliged to consider the Article 8 rights contended for on behalf of the applicants". Mary Carolan's report on this case in The Irish Times in December 2016 noted that, "dozens of other cases were awaiting the outcomes of the two appeals [two appeals were joined together] in which the Irish Human Rights and Equality Commission was involved".

The question I am raising relates to the sequel or the consequence following the handing down of this judgment. How many cases are still awaiting decision? Will the Minister make a statement on the issue? I want to ensure individuals like the members of the Mauritian family at issue in the Balchand case have their full rights considered. The family rights, etc., of their child, who was born here after they had arrived here as students, should be considered. I want to keep an eye on this matter to ensure the Minister's approach is under scrutiny following the handing down of the Court of Appeal decision. I will be grateful for the Minister of State's response.

Minister of State at the Department of Justice and Equality (Deputy Finian McGrath): I thank Senator Bacik for raising this important matter. While it is the responsibility of non-EEA nationals to keep their immigration permission current at all times, the Tánaiste recognises that some former students now find themselves undocumented. As the case referred to by the Senator is being appealed to the Supreme Court, the Tánaiste is somewhat limited in what she can say at this point.

The court ruling came about as a result of non-EEA nationals who previously held student immigration permissions having their applications for new permissions, or variation of the original permissions, refused. The Tánaiste understands proceedings have issued in approximately 70 similar cases. Part of the issue with regard to this complex matter relates to whether existing legislation is sufficiently clear on whether an application under section 4 of the Immigration Act 2004 needs to be made by a person seeking to vary an existing permission, which is current, or whether such an application can be made by a person who is out of permission.

The Court of Appeal judgment raises the issue of whether Article 8 rights under the European Convention on Human Rights should be considered as part of the application process. The State's clear position, which is in keeping with the jurisprudence of the Irish courts and the European Court of Human Rights, is that consideration of Article 8 rights is only required when a person applies to enter the State or when he or she is being considered for removal from the State as part of the deportation process. Such a consideration would take place under a different statute, section 3 of the Immigration Act 1999 and as part of a fundamentally different process. Prior to 1 January 2011, student permissions, it could be argued, were effectively open-ended. A new regime for full-time non-EEA students commenced on 1 January 2011, which capped at seven years the total time student permission would be granted, subject to certain conditions. The Tánaiste appreciates the Senator’s concerns and input on this matter and further consideration is being given by her officials to the wider impacts of the case. As was outlined at the outset, the judgment itself is currently under appeal to the Supreme Court.

Senator Ivana Bacik: I believe it is important that we raise the wider context and the implications of this case while being conscious that it is under appeal. This case concerns two families because there was a related appeal judgment that was given on the same day in the Luximon case. In the case I spoke about, the Balchand case which is under appeal, the couple involved had a son who was born in Ireland in 2009 and who had lived his entire life in the State. He had never even visited Mauritius - the original home country of his parents - and so on. The Minister of State has clarified for me that there are 70 similar cases in which proceedings have now issued. That is a large number of families who are now, as the Minister of State has said, in a position similar to that of Irish people who are undocumented in America. At a time when we are protesting - rightly in my view - about the unfair treatment by President Trump towards undocumented individuals and towards Irish citizens in the US who are currently in such a difficult and uncertain position, it would behove Ireland to look at its own policy and to look at the wider implications. I am glad the Minister of State, Deputy McGrath has said that the Tánaiste is giving further consideration to the wider impacts of the case. I know that the rule from 2011 capped at seven years the total time student permission may be granted, but that is quite a lengthy period and it is very likely that people - as did the couple in the Balchand case - will set down roots, become fully integrated and have a family here. As pre-2011 entrants to the State, it would be a fair approach to state these are people in respect of whom the application to remain could have been granted. Ms Justice Finlay Geoghegan was very clear that in considering the application as to whether to renew permission to stay, the Tánaiste was bound to consider the constitutional principles and the principles as set out in the European Convention on Human Rights. The judge clearly set it out that it was at that stage of the process when the Tánaiste would be bound, and indeed later in the process. I will say no more, given that the matter is under appeal, but I ask the Minister of State, Deputy Finian McGrath, to bring back to the Tánaiste my concern that in appealing this case, the State and the Government are perhaps overlooking the wider implications and the detrimental and negative impact this sort of uncertainty will have for so many families, potentially 70 families, whose status is now uncertain as a result of the State's appeal.

Deputy Finian McGrath: I totally accept the importance of raising this particular case in light of the broader debate. As I said at the outset, while it is the responsibility of non-EEA nationals to keep their immigration permission current at all times, the Tánaiste and I recognise the issue where some former students now find themselves undocumented. The Tánaiste also recognises there is a need to address the issues highlighted by the court judgment in a structured way that maintains the integrity of the immigration system, while addressing the needs on a case-by-case basis. The history of student permissions is such that the rules changed on 1 January 2011 and consequently we are dealing with legacy issues here. The State’s position, which is in keeping with the jurisprudence of the Irish courts and the European Court of Human Rights, is that consideration of Article 8 rights is only required when a person applies to enter the State or in cases of deportation. I do, however, accept the broader issue also and Senator Bacik made reference to Irish people who are undocumented. I totally take that point and will bring it to the Tánaiste.

The Tánaiste appreciates the Senator’s concerns and thanks the Senator for her input on this matter. As was outlined at the outset, the judgment itself is currently under appeal to the Supreme Court so the Tánaiste is limited in what she can do and say at this stage. I will of course bring the Senator's concerns to the Tánaiste and to the Department of Justice and Equality.