AR v Minister for Justice [2025] IEHC 552: Limiting Luximon and Confirming Deferred Assessment of Private‑Life Rights for Unlawfully Present Migrants

1. Introduction

This High Court judgment of O’Regan J in AR v Minister for Justice ([2025] IEHC 552) addresses two interlinked questions in Irish immigration law:

Whether the Minister for Justice is obliged to consider an applicant’s constitutional and European Convention on Human Rights (ECHR) “private life” rights when deciding a freestanding application to regularise status made in reliance on ministerial (executive) discretion; and
Whether it was lawful for the Minister, after refusing an appeal under the Regularisation of Long-Term Undocumented Migrant Scheme and rejecting the request for discretionary permission, to issue a proposal to deport the applicant under s.3 of the Immigration Act 1999.

The applicant, an Egyptian national who first entered Ireland in 2015, argued that:

he should be treated as a “settled migrant”,
his application to regularise his status had not been properly considered, and
the Minister was legally obliged to assess his private life rights under Article 40.3 of the Constitution and Article 8 ECHR before refusing permission and before proposing to deport him.

The High Court rejects all of these contentions, drawing a sharp distinction between:

lawful long-duration migrants whose legal status would be materially changed from lawful to unlawful by a status decision (as in Luximon v Minister for Justice), and
unlawfully present migrants seeking a discretionary “amnesty” or regularisation, for whom the State may lawfully defer private life rights assessment to the later deportation stage, as envisaged in Bode and Chen.

The judgment therefore clarifies the limits of Luximon and confirms that, for migrants already unlawfully present in the State, the Minister is not obliged to conduct a private life rights assessment when refusing a request for non‑statutory permission. Such an assessment may instead be carried out when a proposal to deport is considered under s.3 of the Immigration Act 1999.

2. Factual and Procedural Background

2.1 The applicant’s immigration history

The applicant, an Egyptian national born in 1990, arrived in Ireland on 3 September 2015.
He commenced working shortly after arrival and continued working thereafter, despite his immigration position.
In 2018, his then employer applied for a work permit on his behalf. This was refused in February 2019, but he nonetheless continued to work.
On 19 August 2020, he was granted a Stamp 1 permission for one year. This permission:
- authorised residence for a limited period;
- required him to obtain an employment permit if he wished to work.
Due to the Covid‑19 pandemic, this Stamp 1 permission was automatically renewed, eventually expiring on 31 May 2022.
After 31 May 2022, the applicant had no valid permission to remain and continued to reside and work in the State unlawfully.

2.2 Application under the Regularisation of Long-Term Undocumented Migrant Scheme

A key element in the case is the applicant’s attempt to benefit from the Regularisation of Long-Term Undocumented Migrant Scheme (the “Scheme”), which commenced on 31 January 2022.

The applicant applied under the Scheme in February 2022.
On 28 July 2022, the application was refused at first instance because he did not meet the requirement of being undocumented for a full four-year period prior to 31 January 2022.
The applicant appealed, arguing that his Stamp 1 permission of 19 August 2020 was invalid and unlawful, and that he had in reality been undocumented for four years prior to the Scheme’s commencement.
The appeal was refused on 2 August 2023, but the refusal was not properly served. A fresh refusal, including a proposal to deport under s.3 of the Immigration Act 1999, issued on 23 September 2024.

2.3 Application for ministerial discretionary permission

In parallel to the Scheme process, the applicant’s solicitors pursued a discretionary application to the Minister:

By letter of 13 April 2023, an application was made for the Minister to exercise her non‑statutory executive discretion to grant the applicant:
- either a Stamp 4 permission, or
- a Stamp 1 without an employment permit requirement.
This application was explicitly based on:
- the near two-year period of lawful residence under the Covid-extended Stamp 1;
- the argument that he had become a “settled migrant” who had integrated into Irish society;
- claimed rights under Article 40.3 of the Constitution and Article 8 ECHR (private and family life).
The Minister requested further documentation, which was supplied. An acknowledgment letter of 12 May 2023 stated that the request had not yet been fully examined.
On 14 July 2023 the Minister issued the first impugned decision, refusing:
- to grant permission under s.4 of the Immigration Act 2004, and
- to exercise her executive discretion to grant freestanding permission.

In that decision, the Minister:

stated that the applicant’s s.4 permission had expired on 31 May 2022 and he had no current valid permission;
concluded that no exceptional circumstances had been submitted that would justify a freestanding discretionary grant of permission;
explicitly stated that the decision did not interfere with any constitutional or Article 8 rights, and that such rights would be fully considered in the context of any s.3 deportation procedure.

2.4 Judicial review proceedings

The applicant commenced judicial review under Record No. 2023/1146 JR. The Amended Statement required to ground judicial review was filed on 18 December 2024. He sought:

An order quashing the Minister’s 14 July 2023 decision refusing to accept and consider his discretionary regularisation request and allegedly failing to recognise him as a settled migrant; and
An order quashing the 23 September 2024 decision insofar as it contained a proposal to deport him under s.3 of the Immigration Act 1999.

Although the applicant ultimately appeared as a lay litigant, he had previously been represented by solicitors until May 2025, when they were granted leave to come off record.

3. Summary of the Judgment

The High Court refused all relief sought by the applicant.

3.1 First impugned decision (14 July 2023 – discretionary permission)

The Court held that:

The Minister did in fact “accept and consider” the application for discretionary permission. Although part of the decision used language that might suggest non‑consideration (not to consider the request), when read as a whole the decision clearly:
- engaged with the applicant’s immigration history; and
- expressly stated that the application and all supporting facts had been carefully examined.
The statement about not to consider the request for permission related to the s.4 Immigration Act 2004 context and indicated that the applicant did not succeed under s.4, not that the application was ignored.
It was not unlawful for the Minister not to conduct an Article 8/constitutional private life assessment at this discretionary stage. For a person already unlawfully present, private life rights can appropriately be considered in the course of a future s.3 deportation process.
Given that conclusion, there was no need for the Minister (or the Court) to decide whether the applicant was a “settled migrant” at that stage.

3.2 Second impugned decision (23 September 2024 – proposal to deport)

The Court further held that:

The proposal to deport the applicant under s.3 of the Immigration Act 1999 was lawful.
At the date of this decision, no other application to remain was pending on the applicant’s behalf.
The applicant was in the State without permission and thus within the class of persons in respect of whom the Minister may form the opinion that their deportation is conducive to the common good (s.3(2)(i) 1999 Act).
The Minister was not obliged to first revisit the applicant’s alleged settled migrant status or to assess his private life rights before issuing a deportation proposal. Those rights can and should be addressed within the s.3 process itself.

Accordingly, the Court dismissed the judicial review and made no order as to costs, subject to the parties’ entitlement to file brief submissions if they took issue with that proposed costs order.

4. Legal and Statutory Framework

4.1 Section 4, Immigration Act 2004 – permission to remain

Section 4 of the Immigration Act 2004 governs the grant and renewal of permission to be in the State. It is the usual statutory route for:

granting initial leave to land or reside; and
changing or renewing a person’s immigration status.

The applicant’s Stamp 1 permission from August 2020 to May 2022 was a form of s.4 permission. Once that permission expired (31 May 2022), the applicant reverted to being unlawfully present, unless and until a new permission might be granted.

4.2 Section 3, Immigration Act 1999 – deportation

Section 3 of the Immigration Act 1999 provides the statutory framework for:

the making of deportation orders in respect of non-nationals who are in the State without permission, and
the required procedural steps, including the proposal to deport, the opportunity to make representations, and the consideration of rights under the Constitution and the ECHR.

Under s.3(2)(i), the Minister may consider the deportation of a non‑national who is in the State without permission and whose deportation would, in the Minister’s opinion, be conducive to the common good.

4.3 Non‑statutory ministerial discretion (executive discretion)

Separate from statutory schemes such as s.4 and s.3, the Minister retains a residual executive discretion to grant permission to remain in certain exceptional cases. This is:

not prescribed or structured in legislation;
invoked via freestanding applications for leave to remain; and
often justified only in “exceptional circumstances”, given that it is non‑statutory and discretionary in nature.

The applicant’s 13 April 2023 application was of this type. The Minister’s decision stated expressly that he had not demonstrated any exceptional circumstances warranting the exercise of such discretion.

4.4 The Regularisation of Long-Term Undocumented Migrant Scheme

The Scheme (commencing on 31 January 2022) created a time-limited opportunity for certain long-term undocumented non-nationals to regularise their status, subject to specific conditions. One key condition required that the applicant be:

undocumented for a defined continuous period (here, four years immediately before the Scheme’s start date).

The applicant sought to qualify by arguing that he had been undocumented for four years prior to 31 January 2022 because, he said, his Stamp 1 permission of August 2020 was invalid. The Minister, however, found that the Stamp 1 was valid, meaning the four-year undocumented condition was not met. That conclusion underpinned the refusal of both the initial application and the appeal under the Scheme.

4.5 Constitutional and ECHR “private life” rights

Article 40.3 of the Constitution protects personal rights, including aspects of privacy and autonomy, sometimes engaged when a long-term resident faces removal.
Article 8 of the European Convention on Human Rights protects the right to respect for private and family life, home, and correspondence.

In the immigration context, these provisions are most commonly invoked to argue that the State must carefully balance:

the individual’s private/family life built up in the host State, against
the State’s legitimate interest in immigration control and the maintenance of an effective system of permission and deportation.

The key dispute in this case was when these rights must be considered: at the point of refusing a discretionary regularisation request, or only later, at the deportation stage.

5. Detailed Analysis of the Court’s Reasoning

5.1 Did the Minister refuse to “accept and consider” the application?

The applicant argued that the Minister:

failed to accept and consider his request to regularise his status via executive discretion; and
failed to recognise or properly determine his alleged status as a settled migrant.

O’Regan J carefully examined the wording of the 14 July 2023 decision, including:

the Minister’s references to the expiry of the applicant’s s.4 permission on 31 May 2022; and
the explicit statement that the Minister had carefully examined your application and your immigration history and taken into account all the facts before declining to exercise discretion.

The Court acknowledged that a particular phrase – a decision by the Minister for Justice not to consider the request for permission – might, standing alone, suggest that the application had not been considered. However:

read in context and together with the rest of the decision, it was clear that:
- the application had in fact been evaluated; and
- the phrase referred to the absence of entitlement under s.4 of the 2004 Act, not to a refusal to engage at all with the discretionary request.
The Court applied the well‑established principle that administrative decisions must be read as a whole, and not by isolating individual potentially ambiguous sentences.

On this basis, the Court held that the applicant had not demonstrated that the Minister failed to accept and consider his application. The judicial review challenge therefore could not succeed on this ground.

5.2 Was the Minister obliged to consider private life rights at the discretion stage?

The more legally significant issue was the applicant’s contention that the Minister:

was obliged to consider his private life under the Constitution and Article 8 ECHR when deciding his freestanding discretionary application; and
had acted unlawfully in deferring any Article 8 analysis to a future s.3 deportation process.

The Court addressed this issue by examining and distinguishing key appellate precedents: Luximon, Bode and Chen.

5.2.1 Luximon v Minister for Justice [2018] IESC 24

In Luximon, the Supreme Court considered applicants who:

had entered the State lawfully (as students);
had been continuously lawfully present for several years;
had complied with renewal conditions (save one lapse); and
were seeking a change of status under s.4 of the 2004 Act.

In that case, the Minister had refused their s.4 applications without considering constitutional or Article 8 rights, taking the view that such rights would instead be considered, if necessary, under s.3 of the Immigration Act 1999 in any deportation process.

The Supreme Court held that:

because the applicants were lawful long-duration residents, a refusal under s.4 that would effectively force them either to leave the State or allow their permission to lapse (thus changing their lawful status to unlawful) triggered an obligation to consider private life rights at the s.4 decision stage itself;
the Minister’s failure to consider those rights at that stage was therefore an error of law.

O’Regan J emphasised that the category of person in Luximon – lawful long-duration residents whose presence was conditional on renewable permissions – is materially different from the present applicant’s situation.

5.2.2 Bode (A Minor) v Minister for Justice [2007] IESC 62

In Bode, the Supreme Court considered the adequacy of the deportation process under s.3 of the Immigration Act 1999 as a forum for:

assessing constitutional and ECHR rights, and
balancing those rights against the State’s immigration control interests.

The Court held that the s.3 process is sufficiently broad and flexible to enable the Minister properly to consider and vindicate such rights at the deportation stage. As summarised by O’Regan J:

Denham J had noted that applicants who failed in their applications under the relevant scheme were in the same position as they had been before that application, and their rights could be properly considered within the framework of s.3(11) of the 1999 Act.

Bode thus supports the proposition that, for persons already unlawfully present, the deportation process is the primary legal mechanism for evaluating and balancing their rights.

5.2.3 Chen v Minister for Justice & Equality [2021] IECA 99

In Chen, the Court of Appeal considered an applicant who:

entered the State on a 90‑day visitor visa;
on the last day of that visit permission, applied under s.4 of the 2004 Act for long-term residence; and
had that application refused, with the Minister indicating that any Article 8 balancing would be conducted under s.3 of the 1999 Act if deportation were later proposed.

The applicant relied heavily on Luximon, arguing that the Minister should have conducted an Article 8 assessment at the time of refusing the s.4 application.

The Court of Appeal rejected that argument, holding that:

the reliance on Luximon was “entirely misconceived”;
to require the Minister to conduct an Article 8 balancing exercise whenever an applicant so chooses would:
- make the immigration system overly burdensome, and
- undermine the immigration process and the system of undertakings concerning departure and compliance.
it was sufficient for Article 8 rights to be assessed later, in the context of any s.3 deportation proceedings.

This reinforced the view that Luximon is not a general rule that Article 8 rights must be weighed whenever an immigration decision is taken, but is instead confined to its own facts – especially the existence of a longstanding lawful status that would be fundamentally altered.

5.2.4 Application of these precedents to AR’s circumstances

O’Regan J highlighted several critical features of the applicant’s immigration history:

He entered the State without permission.
He worked without permission.
An employment permit application on his behalf was refused, yet he continued to work.
He received a Stamp 1 permission (August 2020–May 2022), which:
- required him to obtain an employment permit to work; and
- required him to leave the State on expiry unless further lawful permission was obtained.
He did not obtain any employment permit, continued to work, and did not leave the State when the permission expired.
By the date of his 13 April 2023 application for ministerial discretion, he was already unlawfully present and working in the State.

On this basis, the Court concluded that:

The applicant was not within the category of Luximon – he was not a long‑duration, always‑lawful resident whose status would be changed from lawful to unlawful by the refusal.
Instead, his situation fell squarely within the scenario envisaged in Bode and Chen, where:
- the applicant is already unlawfully present; and
- the appropriate stage for balancing constitutional and Article 8 rights is the deportation process under s.3.

Hence, requiring the applicant to raise his private life arguments in response to a s.3 deportation proposal – rather than at the discretionary application stage – was not only lawful but consistent with Supreme Court and Court of Appeal authority.

The Court therefore held that the Minister’s failure to conduct a detailed private life assessment at the point of refusing ministerial discretion was not an error of law. Consequently, there was no need to engage with or determine the applicant’s claim to be a “settled migrant”.

5.3 Lawfulness of the proposal to deport (23 September 2024)

The applicant also challenged the proposal to deport contained in the 23 September 2024 decision, arguing that:

the Minister acted unlawfully in issuing such a proposal without first resolving or recognising his alleged status as a settled migrant and the corresponding private life rights.

O’Regan J rejected this challenge for several reasons:

No pending application – At the time of the 23 September 2024 decision:
- the application under the Scheme (on appeal) had been determined and refused; and
- no other application to remain in the State was pending on the applicant’s behalf.
Unlawful presence – The applicant was, by this stage, present in the State without permission, falling squarely within the class of persons who may be deported under s.3(2)(i) as persons whose deportation would be conducive to the common good.
Appropriate forum for rights assessment – Consistent with Bode and Chen, and having ruled that there was no duty to conduct a private life balancing exercise at the earlier discretionary stage, the Court held that:
- it was lawful to issue a proposal to deport and leave the consideration of Article 8 and constitutional rights to the s.3 decision‑making process itself.

The Court therefore held that the proposal to deport was lawful and in accordance with s.3 of the Immigration Act 1999.

6. Complex Concepts Explained in Plain Language

6.1 “Settled migrant”

The term “settled migrant” is not a defined statutory category but comes from broader human rights jurisprudence (especially in the European Court of Human Rights). In simple terms, a “settled migrant” is someone who:

has lived in a country for a substantial period of time;
has built up significant private and often family life there; and
has had, for most of that period, lawful residence.

Such a person may enjoy stronger Article 8 protection against expulsion than someone present only briefly or unlawfully. In this case, the applicant tried to categorise himself as a “settled migrant” to bolster his private life claim.

However, O’Regan J effectively held that, because:

he entered without permission,
worked unlawfully for extended periods, and
was unlawfully present at the time of his application,

he did not fall within the category of long-term lawful residents considered in cases such as Luximon. The Court did not need to decide in abstract whether his private life was strong or weak; it was enough to hold that the appropriate stage to assess any such rights was the s.3 deportation process.

6.2 Stamp 1 and Stamp 4

Stamp 1 – Normally a work-related permission. It typically requires the holder to:
- hold a valid employment permit; and
- stay only for a defined limited period.
Stamp 4 – A more secure form of residence permit, which:
- does not require an employment permit to work; and
- may lead to greater stability and, over time, to long‑term residence or even citizenship.

The applicant sought either a Stamp 4 or a Stamp 1 without a work permit requirement, essentially seeking to transform a precarious or unlawful status into a much more secure one through ministerial discretion.

6.3 “Executive discretion” versus statutory schemes

The Minister’s “executive discretion” refers to her non‑statutory power to grant immigration permissions outside the structures laid down in legislation. This is:

not a right that individuals can demand as of entitlement;
exercised sparingly, often in exceptional cases; and
subject to traditional public law constraints (rationality, fair procedures, non‑discrimination, etc.).

The Court’s analysis implicitly confirms that:

applicants cannot compel the Minister to treat executive discretion as a parallel statutory regime requiring full Article 8 balancing whenever invoked;
instead, the main forum for rights assessment remains the statutory s.3 deportation process, except in narrow circumstances like those in Luximon.

6.4 “Proposal to deport”

A proposal to deport is not the deportation order itself. It is the first formal step in the s.3 process, whereby the Minister:

informs a non‑national that deportation is being considered; and
invites representations, including any reliance on constitutional and Article 8 rights, before making a final decision.

It is at this stage that the applicant can present detailed evidence of:

family ties,
integration,
health issues,
employment history, and so on,

for the Minister to weigh before deciding whether to make a deportation order or grant some alternative permission.

6.5 “Quashing” a decision in judicial review

In judicial review, an applicant does not seek a fresh decision from the court on the merits but asks the court to:

quash (set aside) an administrative decision on the ground that it is unlawful (for example, procedurally unfair, irrational, in breach of statute, or in breach of constitutional or ECHR rights),
and remit the matter for reconsideration by the decision‑maker in accordance with law.

Here, the applicant failed to establish any such unlawfulness in either impugned decision. As a result, the High Court refused to grant any quashing order.

7. Impact and Significance of the Judgment

7.1 Clarifying the limits of Luximon

One of the most important contributions of this judgment is the clarification that Luximon does not require the Minister to conduct a constitutional/Article 8 private life analysis:

every time an immigration decision is made; or
whenever an applicant invokes private life rights in a discretionary application.

Instead, Luximon is confined to a narrow class of cases:

where the applicant is a lawful, long-duration resident whose legal status is currently lawful and would be fundamentally altered (to unlawful) by a status decision under s.4.

By contrast, people like AR – who:

entered unlawfully,
worked unlawfully, and
were unlawfully present when they sought ministerial discretion –

are to be treated under the Bode/Chen line of authority. For them, the deportation process under s.3 is the appropriate and sufficient forum for any detailed examination of private life rights.

7.2 Immigration control and system integrity

The judgment also highlights the Court’s concern to protect the functionality and integrity of the immigration system. Following the analysis in Chen, O’Regan J implicitly accepts that:

to require a full private life balancing exercise at the applicant’s chosen time (for example, whenever they file a discretionary request) would:
— be administratively burdensome; and
— risk undermining compliance with normal immigration rules (such as departing when permission expires).
The system is designed so that:
- private life and family life can be considered at the structured, statute‑based deportation stage; and
- exceptional cases can still be addressed via executive discretion, but without turning that discretion into a mandatory Article 8 assessment stage.

7.3 Strategic implications for migrants and practitioners

For migrants and their legal advisers, the case carries clear strategic lessons:

Unlawfully present migrants cannot rely on Luximon to insist on a full private life assessment when they lodge discretionary applications. They must generally be prepared to articulate those rights in response to a s.3 proposal to deport.
Applications invoking “settled migrant” status will have limited traction if the applicant’s immigration history is marked by:
- unlawful entry,
- long periods of unlawful residence and work, and
- failure to comply with the conditions of prior permissions.
When advising on litigation, practitioners should carefully distinguish:
- Luximon‑type cases (lawful long‑duration residents); and
- cases like AR’s, where applicants seek regularisation from an unlawful starting point.

7.4 Interaction with the Regularisation Scheme

Although the core of the judgment is not about the design of the Scheme, the decision implicitly confirms that:

the Minister was entitled to treat the Stamp 1 permission as valid for Scheme purposes; and
therefore, the applicant did not satisfy the four-year undocumented requirement.

This offers some reassurance that the Scheme’s criteria will not easily be circumvented by re-characterising previously granted permissions as “invalid” after the fact.

7.5 Costs and access to justice

The Court’s decision to make no order as to costs, coupled with an invitation to both sides to file short submissions if they disagreed, is noteworthy. While the judgment does not elaborate on the reasons, such an approach may:

reflect the Court’s recognition that the applicant was a lay litigant by the time of judgment; and/or
serve to avoid unduly deterring individuals from bringing good faith challenges on points of law that clarify important aspects of immigration practice.

8. Conclusion

This judgment in AR v Minister for Justice provides an important clarification in Irish immigration law on when the Minister is required to assess private life rights and how far Luximon extends.

O’Regan J holds that:

The Minister did consider the applicant’s freestanding request for discretionary permission and lawfully concluded that no exceptional circumstances justified a grant.
The Minister was not obliged to conduct a detailed constitutional or Article 8 private life analysis at the stage of refusing that discretionary request, because the applicant was already unlawfully present and did not fall within the Luximon category of lawful, long‑duration residents.
Consistent with Bode and Chen, for persons in the applicant’s position the appropriate and sufficient forum for assessing private life rights is the s.3 deportation process.
The proposal to deport under s.3, issued on 23 September 2024, was lawful, given the applicant’s unlawful presence and the absence of any pending application to remain.

As a result, the Court refused to quash either of the impugned decisions and made no order as to costs.

In the broader legal context, the case stands as a firm reaffirmation that:

Luximon is not a general licence for applicants to demand a private life rights balancing at every procedural step;
unlawful presence significantly constrains the circumstances in which private life must be evaluated outside the deportation framework; and
the Minister’s executive discretion remains a residual, exceptional mechanism, not a parallel system of rights-based regularisation.

For future cases, AR v Minister for Justice will likely be cited as a leading High Court authority:

in resisting attempts by unlawfully present migrants to expand the Luximon principle; and
in affirming that, save for special categories of lawful residents, private life and family life rights are to be considered primarily in the structured context of s.3 deportation procedures.