EL v Minister for Justice (Approved)

Factual and Procedural Background

The Applicant, an Albanian national born on 1 July 1997, arrived in the State in April 2017 and applied for international protection on 19 June 2017. This application was refused on 27 June 2019. During the period between application and refusal, the Applicant held permission to remain pursuant to section 16 of the International Protection Act 2015 ("s.16"). Following refusal, a deportation order was made on 31 July 2019.

In February 2022, the Applicant applied for permission to remain under the Regularisation of Long Term Undocumented Migrants Scheme ("the scheme"), which commenced on 31 January 2022. Eligibility required continuous undocumented residence for at least four years as of the scheme’s commencement.

The Applicant’s application under the scheme was refused on 14 September 2022. An appeal was lodged on 20 September 2022, with the refusal upheld on 29 June 2023. The Applicant obtained leave on 6 November 2023 to seek judicial review to quash the appeal decision, based on grounds set out on 5 October 2023.

The scheme contains two strands: the first targets undocumented migrants with continuous residence for four years or more as of 31 January 2022; the second, opened on 7 February 2022, applies to persons with extant international protection claims pending for two years or more as of that date.

Legal Issues Presented

1. Whether the computation of the four-year period for eligibility under the scheme was irrational, particularly regarding the treatment of s.16 permission periods.
2. Whether the scheme’s exclusion of s.16 permission holders constitutes arbitrary, disproportionate, or unlawful discrimination contrary to Article 40.1 of the Constitution.
3. Whether the Respondent fettered discretion by refusing to exercise ministerial discretion to grant permission to the Applicant notwithstanding non-compliance with scheme terms.
4. Whether the scheme’s two strands and their treatment of s.16 permission holders are consistent and rational.

Arguments of the Parties

Applicant's Arguments

• The Minister irrationally discounted the period during which the Applicant held s.16 permission when calculating eligibility under the scheme, treating s.16 permission inconsistently between the two strands.
• Holders of s.16 permission do not enjoy rights equivalent to lawful residence, such as access to the labour market or citizenship reckonability, rendering the Minister’s approach illogical and unfair.
• The scheme rewards unlawful behaviour by undocumented migrants while penalizing those, like the Applicant, who complied openly with State authorities.
• The scheme’s exclusion of s.16 holders is arbitrary, disproportionate, and unlawfully discriminatory under Article 40.1 of the Constitution, lacking objective justification.
• The Respondent fettered discretion by refusing to consider granting permission outside strict scheme terms.
• The Applicant contended that the Minister’s refusal to exercise discretion was unlawful and amounted to fettering discretion.
• The Applicant relied on case law including Bode v Minister for Justice, Pok Sun & Shun v Ireland, Dunne v Minister for the Environment Heritage & Local Government, and Chevathan v Minister for Justice & Equality to support arguments on discretion and rationality.
• In oral submissions, the Applicant abandoned arguments based on other schemes (Afghan Admissions Programme and Dublin 3 Regulations) but maintained the central claim of irrationality and unlawful fettering of discretion.

Respondent's Arguments

• The Applicant’s comparator is inappropriate; the scheme’s strict eligibility criteria apply equally to all persons without four years’ undocumented residence, regardless of prior international protection applications.
• The Minister is entitled to establish and apply strict criteria in an ex gratia scheme without engaging legal rights, and the Applicant has not shown why discretion should be exercised in his favour.
• The Applicant can apply for ministerial discretion under s.3(11) of the Immigration Act 1999, but cannot rely on predicted outcomes absent an actual application.
• The scheme is a lawful, extra-statutory ex gratia scheme conferring benefits without creating legal rights; unsuccessful applicants are no worse off than before.
• Holders of s.16 permission have access to labour market rights (post six months), social welfare, housing, healthcare, and other State supports, unlike undocumented migrants, justifying differential treatment.
• The two strands of the scheme serve distinct objectives and populations; the differential treatment of s.16 permission holders is rational and justified.
• The scheme is not arbitrary, capricious, or irrational; the Applicant’s perception of unfairness does not meet the high threshold required to invalidate the scheme.
• The discrimination claim fails as the scheme is not legislation and does not discriminate on grounds related to human personality or protected characteristics.
• The Respondent relied on case law including Bode v Minister for Justice, East Donegal Cooperative v Attorney General, McGimpsey v Ireland, and Minister for Justice & Equality v O'Connor to support the lawfulness of the scheme and its criteria.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the Applicant’s claim that the Minister’s treatment of s.16 permission was irrational and inconsistent between the two strands of the scheme. The Court found that the two strands targeted different populations with distinct objectives, and that the scheme’s provisions, including Clause 3.3 and Clause 4.9, were consistent in treating s.16 permission as a valid residence permission for the purposes of the scheme. The Court rejected the Applicant’s argument that s.16 permission was not to be counted as lawful residence, noting that the Minister did not take differing views in the two strands.

The Court further considered the constitutional discrimination claim under Article 40.1, applying the test from Donnelly v Minister for Social Protection and O'Meara v Minister for Social Protection. It held that the scheme’s classification was rationally connected to its legitimate objectives, namely alleviating challenges faced by undocumented migrants and regularising long-pending international protection applicants. The Applicant’s comparator was deemed invalid, and no discrimination based on human personality or protected characteristics was established.

Regarding the exercise of ministerial discretion, the Court found no unlawful fettering. The Applicant’s request for discretion was effectively to disapply scheme criteria, which the Court held would be a lawless scenario undermining the scheme’s integrity. The Court relied on Chevathan and Mishra to support this conclusion.

The Court accepted the Respondent’s submission that the scheme is an ex gratia, extra-statutory arrangement conferring benefits without creating legal rights, and that unsuccessful applicants are no worse off than before applying. The Court noted the rights and benefits conferred on s.16 holders, distinguishing them from undocumented migrants.

Ultimately, the Court concluded that the Applicant failed to discharge the burden of proving that the scheme was arbitrary, capricious, irrational, disproportionate, or unlawfully discriminatory.

Holding and Implications

The Court REFUSED the relief claimed by the Applicant and upheld the decision of the Respondent to refuse permission under the scheme.

The direct effect is that the Applicant remains ineligible for the scheme’s benefits. The decision does not set new precedent but affirms the lawfulness of the scheme’s eligibility criteria, the rationality of its classification, and the limits on ministerial discretion within such ex gratia schemes. Costs are provisionally awarded to the Respondent, subject to written submissions by the parties.