Further implications of the Luximon case

We note the recent judgment of Ms. Justice O’Regan in the case of T.K.B and Minister for Justice and Equality [2017] IEHC 202 where leave to apply for Judicial Review was refused.

The applicant was seeking an order of mandamus compelling a decision on his application to extend or vary his prior permission. He originally came to Ireland in August 2007 pursuant to a student visa, which expired in February 2014. In March 2016, he applied to the Minister to extend or vary his prior permission.

In February 2017, the applicant wrote to the Minister requesting a decision within 14 days. The Minister replied stating that because of the judgment in the matter of Luximon v. Minister for Justice and Equality [2016] IECA 382, the Irish Naturalisation and Immigration Service (INIS) was re-examining the decision making process in respect of these applications, and that no steps would be taken by the State pending the determination of the applicant’s application.

The Court held that the applicant did not have an arguable case because the explanation given for the delay was reasonable and rational, and further, the applicant was assured that no steps would be taken pending the outcome of the application. The court noted that applicant was not suffering prejudice as he appeared to be working regardless of the fact that he did not have permission. The court also pointed out that the applicant “was content” to reside in the State from February 2014 to March 2016 without any permission whatsoever, indicating perhaps that the applicant’s insistence now for a decision was not reasonable.

The case may be of interest to those who are in a similar situation to the applicant. It is noted from this that it may be advisable to make an application to the Minister, but that a decision cannot reasonably be expected until the INIS have reasonably completed a review of the process following the Luximon case.

In December 2016, the Court of Appeal ruled in Luximon that the Minister in determining applications for permission to remain under section 4(7) of the Immigration Act 2004 (as amended), must consider the rights of an applicant to respect for his or her family and private life under Article 8 of the European Convention on Human Rights.

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