Former foreign students win right to appeal residency ruling

A Court of Appeal ruling has significant implications for many non-European Economic Area (EEA) people who stayed in Ireland after coming here as students before 2011 and wish to continue living and working here.

In judgments on two test cases, the court ruled, before determining such “change of status” applications, the Minister for Justice must consider their rights to private and family life under the Constitution and article eight of the European Convention on Human Rights.

Ms Justice Mary Finlay Geoghegan, with whom Mr Justice Michael Peart and Mr Justice Gerard Hogan agreed, said a proposed refusal of an application for permission to remain, under section 4.7 of the Immigration Act 2004, of persons such as the applicants potentially interferes with their right to respect for private and family life such as to engage article eight.

The Minister accepted she had to consider such rights when considering whether to make deportation orders, the judge noted.

‘Stark’ refusal

The Minister’s “stark” refusal to consider those same rights before making decisions requiring these applicants, who came here lawfully and have lived here lawfully for years, to leave the State was not consistent with her obligations under section 4.7 of the 2004 Act, she held.

The judgments concerned applications by two Mauritian families under section 4.7 of the 2004 Act for permission to remain on the basis of “change of status”. The applicants sought permission to change to “stamp 4” status – which would entitle them to work, receive social welfare payments and not have to be students. The Minister must now reconsider the applications in line with the court’s findings.

The judgments have implications for non-EEA people who came here as students before the government introduced a new study policy in 2011 that non-EEA students can only reside in Ireland for a maximum seven years.

Before 2011, non-EEA students did not need a visa to study here. After the new policy was introduced, a transitional arrangement provided those who came here before January 2011 and who wished to stay beyond seven years were given a brief extension of their permission to apply for a work permit.

Dozens of other cases were awaiting the outcomes of the two appeals, in which the Irish Human Rights and Equality Commission was involved.