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Immigration and Asylum Law Briefing - February

Bundhooa v Minister for Justice and Equality [2018] IEHC 756

The applicant is a citizen of Mauritius who held a 'stamp 2' student permission which expired in 2011. Thereafter, she was illegally present in Ireland. Then, on 30 July 2015 she applied for a residence card after marrying an EU national. However, on 30 April 2016 her application was refused on the basis that the marriage was one of convenience.

Ms Bundhooa then sought permission to remain on a 'stamp 4' basis, invoking s 4 of the Immigration Act 2004. By decision of 22 September 2016, the Minister refused the application stating: 'Because you did not have permission when the application was received, the question of amending or extending it does not arise. Accordingly, your case will not be dealt with under s 4.' 

Ms Bundhooa then sought an order of certiorari in respect of that refusal. Following a consideration of the relevant facts and the applicable precedent in this area, Barrett J felt 'coerced as a matter of law to refuse this application.' The decision can be read in full here.

 

Ahmed v Minister for Justice and Equality [2018] IEHC 645

This case arises from the respondent's refusal to grant two 'join family' visas to the applicant which would enable the applicant's family members - currently resident in Ethiopia - to come and join them in Ireland. The applicant is a full-time carer for her 18-year-old son and is in receipt of carer's allowance. 

The relevant dates are as follows. On 5 October 2016, join family visa applications were submitted to the Irish Embassy in Addis Ababa. On 30 May 2017, these applications were refused by the embassy, only to be appealed on 28 July 2017. On 20 October 2017, over one year after the initial process began, the Minister refused the appeal by way of a written letter.

The present case arises by means of judicial review of the Minister's decision. Following a careful consideration of all of the relevant facts, Barrett J found several deficiencies in the Minister's decision to refuse the appeal - most notably a finding by the decision-maker that there was 'no clear link' between a doctor who provided medical evidence which suggested the applicant's son would benefit from re-unification with his family, and the son.

The applications are now to be remitted to the Minister for reconsideration in light of the issues raised by the court in this judgment, which can be read in full here.

 

No legal aid for those facing revocation of citizenship

Last year Minister for Justice Charlie Flanagan established a Committee of Inquiry to investigate cases where there may be a need to revoke citizenship from a naturalised citizen. Usually, such cases would arise in circumstances where fraudulent information was provided at the time of the application, or where the individual is suspected of having breached their declaration of fidelity to the State - as covered under Art 9(2) of the Constitution.

According to a report in the Irish Times, the Committee of Inquiry will be comprised of retired judge Paddy McMahon, former cabinet minister Olivia Mitchell and solicitor Philip O'Leary. The committee heard its first two cases at a sitting in Tipperary in December and will hear around forty more in 2019.

Crucially, it has emerged that those facing loss of citizenship will not be granted free legal aid. This issue is likely to be litigated before the courts in the coming years, as applications for revocation become more commonplace. In the fifth edition of Kelly: The Irish Constitution, it is submitted that the constitutionality of allowing the government to revoke citizenship is 'questionable' because the 'drastic nature' of such a decision begs the question as to whether 'anyone other than a judge could order it'. For more on this, see para 3.3.09.

 

Note: This is not intended to be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.

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