S.A v The Minister for Justice and Equality (Approved)

Factual and Procedural Background

The Applicant, born in Country X in 1971, acquired citizenship of Country Y through marriage in 2005, which he states resulted in the loss of his original citizenship. After divorcing later that year, he converted from Religion A to Religion B in 2013, creating a danger to him from his former community in Country Y, prompting his flight.

The Applicant arrived in the State on 19th November 2013 and was granted a student permission valid from 23rd December 2013 to 6th December 2016. He did not apply for international protection upon arrival but did so on 6th December 2016 after being informed that his student permission would not be extended. His international protection application was refused by the Immigration Protection Office (IPO) on 7th November 2018, and on 8th November 2018, the Minister for Justice and Equality refused permission to remain, which is the impugned decision.

The Applicant appealed the protection refusal to the International Protection Appeals Tribunal (IPAT) on 4th December 2018. The appeal was rejected on 13th May 2019, a decision not challenged. The Minister undertook not to carry out a review of the permission to remain pending the outcome of the judicial review proceedings. Leave for judicial review was granted on 17th December 2018.

Legal Issues Presented

1. Whether a student permission amounts to a grant of settled status such that deportation requires a proportionality assessment under Article 8 of the European Convention on Human Rights (ECHR).
2. Whether the Minister erred in law by treating the Applicant’s residence as precarious and failing to consider private life rights acquired during the period of student permission.
3. Whether the Minister’s decision and reasoning regarding the Applicant’s entitlement to rely on Article 8 ECHR was lawful and reasonable.
4. The proper interpretation and application of Strasbourg jurisprudence concerning settled versus precarious migrant status in the context of deportation and Article 8 rights.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that his student permission constituted lawful long-term residence conferring private life rights under Article 8, which were not properly considered.
• He argued that the Minister erroneously applied the wrong legal test by treating his residence as precarious and requiring exceptional circumstances before engaging Article 8 proportionality.
• The Applicant challenged the Minister’s wording that no expectation was given to form a private life in the State and that Article 8 could not be relied upon to circumvent immigration rules.
• He asserted that the Minister’s decision was based on an unlawful bright line rule rather than a discretionary assessment.
• The Applicant sought to rely on obiter dicta from the Court of Appeal suggesting a broader approach to Article 8 claims beyond settled status.

Respondent's Arguments

• The Respondent maintained that student permissions are inherently temporary and do not amount to settled status.
• It was argued that the Applicant’s residence was correctly treated as precarious, requiring exceptional circumstances to engage Article 8 proportionality, which were not demonstrated.
• The Minister’s decision was consistent with established Strasbourg caselaw distinguishing settled migrants entitled to Article 8 protection from precarious migrants who are not, absent exceptional circumstances.
• The Respondent asserted that the Minister’s reasoning, including the language used, was lawful, reasonable, and supported by precedent.
• The Respondent emphasized the presumption of validity attaching to administrative decisions and that the Minister was not required to provide an academic legal essay or recite all possible exceptions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the established legal principle that student permissions are inherently temporary and do not confer settled status under Article 8 of the ECHR. The Court emphasized that the Applicant’s residence was correctly treated as precarious, requiring exceptional circumstances to engage a proportionality assessment, which were not shown.

The Court explained the term "precarious" as used in Strasbourg jurisprudence to mean presence without settled status, encompassing both unlawful and lawful but temporary residence. It rejected the Applicant’s contention that private life rights accrued during the period of unsettled status could engage Article 8 protections, noting that such rights arise only from settled residence unless exceptional circumstances apply.

The Court addressed the Applicant’s criticism of the Minister’s wording, holding that the decision must be read as a whole and that the possibility of exceptional circumstances was acknowledged, even if not elaborated upon. The absence of a detailed academic legal exposition was not a ground for invalidity given the presumption of validity in administrative decisions.

Regarding the Applicant’s reliance on obiter dicta from the Court of Appeal, the Court found such interpretations implausible and clarified that the dicta were directed at exceptional cases, not the general rule. The Court reiterated that the established Strasbourg methodology requires assessing the Applicant’s status at the time private and family life was established to determine if proportionality applies.

The Court extensively reviewed Strasbourg case law, confirming that settled status is a prerequisite for a proportionality assessment under Article 8, and that removal of non-settled migrants does not require such assessment except in exceptional circumstances. The Applicant failed to demonstrate that he falls within such exceptions.

Finally, the Court upheld the Minister’s approach as consistent with both domestic and international jurisprudence and dismissed the Applicant’s challenge.

Holding and Implications

The Court’s final decision is DISMISSED.

The Applicant’s judicial review challenge to the Minister’s refusal to grant permission to remain was rejected on the basis that student permission does not confer settled status and that no exceptional circumstances justified a proportionality assessment under Article 8 ECHR. The Minister’s decision was held to be lawful, reasonable, and consistent with established Strasbourg jurisprudence.

The Respondent is discharged from the undertaking not to carry out the review under the International Protection Act 2015, effective five days from the judgment’s electronic delivery, allowing the Applicant a statutory right to submit additional submissions during that period.

No new legal precedent was established; the decision reinforces the existing framework distinguishing settled from precarious migrants in Article 8 cases.