The Supreme Court has ruled the Minister for Justice was entitled to refuse long-term residency, exempt from work permit conditions, to a Bangladeshi man on foot of his conviction for driving without insurance.
The disputed decision was made in 2011 and the man, who has lived here for many years, has since obtained Irish citizenship, with the effect he no longer had an interest in the legal proceedings.
Because the case concerned the extent of the Minister's powers related to applications for residency exempt from work permit conditions, she sought to appeal and the High Court certified certain important points of law should, in the public interest, be decided by the Supreme Court. It in turn decided the Minister should pay the man's legal costs of the appeal,
The points included whether the Minister retains an executive power, notwithstanding provisions of the 2004 Immigration Act, to operate non-statutory schemes for granting permission to be or remain in the State.
The five-judge Supreme Court said it was accepted, because there was no evidence in this case concerning the basis on which the Minister had approached her decision, that wider point “of difficulty and signifiance” would have to be decided in another case.
Given the court's unanimous judgment, Mr Justice Adrian Hardiman said the issue for decision was whether, assuming the power being exercised by the Minister was purely statutory, she had fettered her discretion.
There was no basis for the High Court finding the Minister’s discretion related to long term residency applications was entirely constrained by provisions of the Immigration Act concerning the criteria on which an immigration officer may refuse permission to land to a non-Irish national entering the State from a place outside the State, he said.
An immigration officer’s decision about permission to land is quite different from a decision the Minister makes on an application to vary or renew permission to remain in the State, he said.
Mr Justice Hardiman said there was “no evidence whatever” the Minister operated an “inflexible” and “good character” policy of refusing long term residency exempt from work permit conditions to the man due to his conviction for driving without insurance, “or for any other reason”. The claim the Minister had fettered her discretion was “simply unfounded” on the evidence, he said.
The Minister certainly regarded a conviction for driving without insurance as a serious matter and was entitled to do so, he said. In this case, the man could not get insurance in his own name as he held only a Bangladeshi driving licence and had apparently taken no steps to get an Irish one.
While this occurred in the case of a man resident here for some years, there was no evidence whatever the Minister regarded the conviction as “a permanent bar” from residency exempt from work permit conditions. That was made evident by a letter from the Irish Naturalisation and Immigration Service confirming to the man his application had been rejected but stating he could reapply.
The fact the man later became an Irish citizen demonstrated the authorities have taken into account the further period he has spent here without coming to unfavourable notice, the judge added.
