In December 2016 we published an Article about a Court of Appeal decision on Student visas called “Ground Breaking Court of Appeal Judgement for Non-European Students that over stayed their student visa”
On the 24th April 2018, the Supreme Court in the case of Luximon and Balchand -V- The Minister for Justice, Equality and Law Reform, confirmed that the when considering whether or not to renew or vary the position of a students who had overstayed their student visa to remain in the State, the Minister should have considered Article 8 rights to private and family life under the European Convention on Human Rights.
Ms Luximon and Mr. Balchard had come to Ireland in 2006 and wished to live and work in the State after the student visa had expired. When the New Immigration Scheme for Full Time Non-EEA Students was introduced in July 2011, they became “timed out” and were no longer permitted to remain in the State.
In December 2017 The Court of Appeal has issued a judgement which had far reaching consequences for students that are not from the European economic area. The judgement affected people that overstayed their student visa and specifically students who came here before 2011 that wish to continue to live and work in Ireland after their visas expired.
Prior to 2011 whilst students that were not from the European economic required a visa to study in Ireland, after the Minister introduced a new policy in 2011, the Department of Justice also introduced a transitional arrangement that applied to those people. The transitional arrangements were that if they wished to stay beyond a seven-year period they were given an extension to apply for a work permit. Those who could not meet the transitional arrangements were “timed out”.
The two test cases or Luximon and Balchand were brought before the Court in relation to student visas where students had overstayed. The court ruled that the Minister for Justice must consider Article 8 rights to private and family life under the European convention on human rights and the right to family and private life under Irish constitutional law before determining any change of status applications for students that have overstayed their visas.
It was decided by the Court of Appeal that a refusal by the Minister to allow certain applications for students to remain could interfere with their right to respect for family and private life pursuant to Article 8 ECHR and that ignoring such rights in the decision-making process could have consequences for the department if they refused such applications.
The court of Appeal had regard to the Immigration Act 2004 and it noted that under Section 4.7 of that act, the Minister had certain obligations to consider certain rights before refusing to allow the applicants to continue to reside in Ireland.
Both of the families are from Mauritius and had applied to the Minister for permission to remain in Ireland on the basis of their “change of status”. Those applicants wanted to change their status to stamp 4 status which allows successful applicants to work in Ireland, obtain social welfare benefits as normal, to open a business and all of the other benefits that a stamp 4 brings as opposed to student status.
For all non-EU Nationals who came here as students before the new student policy that the government introduced in 2011 (providing that the students can only stay here for a maximum of 7 years) the judgement had a significant implication. The effect of the judgement was that the Department of Justice would have to consider all applications in line with the findings of the Court of Appeal and it specifically had to consider whether refusing such applications would interfere with the applicants’ rights to private and family life. The State appealed the Court of Appeal judgement to the Supreme Court and many people are awaiting the outcome of this Supreme Court judgement.
Today the Supreme Court held that the Minister breached S. 3 of the European Convention on Human Rights Act 2003 Act by not considering the applicants family life pursuant to Article 8 of the ECHR.
The Supreme Court noted that the decision only addresses the facts in this case. However, it is undoubtedly the case that this Supreme Court Judgement will have far reaching implications for other applicants who have overstayed their Student Visas in similar circumstances. In future the minister will have to consider whether it would be contrary to the applicants Article 8 Family life rights before refusing the applicant’s application to remain in the State.