Supreme Court appeals have implications for thousands of non-EEA people

The Supreme Court has reserved judgment on two appeals with significant implications for thousands of people from outside the European Economic Area (EEA) who came here as students before 2011 and stayed on to work.

The appeals centre on whether the Minister for Justice, before deciding “change of status” applications by people from outside the EEA who came here on student visas, must have regard to their rights to private and family life under the Constitution and Article 8 of the European Convention on Human Rights.

They have implications for non-EEA people who came here as students before the government introduced a policy in 2011 that non-EEA students can only live here for a maximum of 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.

Appeal against

The Minister for Justice and the State on Thursday appealed against judgments delivered by the Court of Appeal last December in which the appeal court held, before determining “change of status” applications by the applicants, the Minister must consider their rights to private and family life under the Constitution and Article 8 of the ECHR.

The appeal court also held a proposed refusal of an application for permission to remain, under Section 4.7 of the Immigration Act 2004, of people such as the applicants potentially interferes with their right to respect for private and family life under Article 8.

On Thursday, a five-judge Supreme Court heard submissions from Brian Murray SC, for the Minister, who argued it was not unconstitutional to operate the “change of status” system in the manner complained of. There was no legal authority or principle which could be evoked by a non-EEA national to support the claim assessment of rights must be done before the actual right “bites”, he said.

Consideration

The court should also factor into its consideration that the Council of Europe has not recognised students as long-term immigrants, he said.

Garrett Simons SC, and Michael Lynn SC, for the two Mauritian families involved in the cases, opposed the appeal and argued the Court of Appeal decision should stand.

The Irish Human Rights and Equality Commission was involved in the cases as amicus curiae, assistant to the court on legal issues. In its submissions, the Commission, represented by Feichin McDonagh SC, said the Minister was required to consider the private and family life rights in making decision on immigration status variations under the 2004 Act.

Both Mauritian families had applied under Section 4.7 of the 2004 Act for permission to remain on the basis of “change of status”.