Factual and Procedural Background
The Applicant, an Algerian national, arrived in The State on 06 December 2016 and applied for international protection on the same day. His application was refused by letter dated 07 November 2018, a decision upheld on appeal by IPAT on 20 August 2019. A subsequent request for permission to remain was refused on 29 September 2020. No Deportation Order has been issued against the Applicant.
In February 2022, the Applicant applied under the Scheme to Regularise Long Term Undocumented Migrants in The State ("the Scheme"). The Scheme has two time-limited strands: the first strand, commencing 31 January 2022, provides a pathway for long-term undocumented persons and their dependents to obtain residence permission; the second strand, running from 07 February 2022 to 07 August 2022, offers a simplified case processing approach for international protection applicants in the system for two years or more, requiring a live application for protection.
Leave to apply for judicial review was granted on 15 January 2024. The Applicant's application under the Scheme was refused on 13 February 2023 on the basis that he had not been undocumented for the required four-year period prior to January 2022. An appeal against this refusal was made on 01 March 2023, arguing errors in fact and law, including that the Applicant had no valid permission between August 2019 and September 2020 and that delays in processing should be disregarded. The appeal was refused by decision dated 31 August 2023, which is the impugned decision in these proceedings.
Legal Issues Presented
- Whether the requirement in the Scheme’s second strand that international protection applicants must have been in the protection process for at least two years prior to 07 February 2022 is arbitrary, capricious, a breach of fair procedure, irrational, unreasonable, or disproportionate.
- Whether the Respondent fettered the Minister’s discretion by failing to properly consider the exercise of residual executive discretion outside the strict terms of the Scheme.
- Whether the Applicant was unlawfully discriminated against contrary to Article 40.1 of the Constitution, the European Convention on Human Rights (ECHR), and the Charter of Fundamental Rights and Freedoms.
Arguments of the Parties
Applicant's Arguments
- The requirement that international protection applicants must have been in the system for at least two years prior to 07 February 2022 is arbitrary, capricious, disproportionate, and breaches fair procedure.
- The decision of 31 August 2023 unlawfully fettered the Minister’s discretion by acknowledging residual discretion but failing to exercise it or properly consider its exercise.
- The Applicant contends that the restriction unlawfully discriminates against him without objective justification, contrary to constitutional and human rights provisions.
- The Applicant argued that delays in processing his international protection application should be disregarded when assessing eligibility under the Scheme.
- It was submitted that the Applicant was entitled to request the exercise of Ministerial discretion even if outside the Scheme’s eligibility criteria.
Respondent's Arguments
- The Scheme’s qualifying criteria are set by executive decision and the Minister has discretion which may be exercised, but no freestanding right exists to apply for executive discretion absent eligibility under the Scheme or a relevant procedure.
- The Applicant was not eligible under either strand of the Scheme as he did not meet the required periods of undocumented status or time in the international protection system.
- The classification made by the Scheme is rational, proportionate, and serves legitimate legislative and policy objectives.
- There is no unlawful discrimination as the distinctions drawn between classes of persons are based on legitimate social functions and policy considerations.
- The Applicant’s comparator for discrimination purposes is invalid as the Scheme explicitly excludes persons in his position.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McCarron & Ors. v Superintendent Peadar Carney & Ors. [2010] 3 IR 302 |
Unlawful fettering of statutory discretion by rigid policy; distinction between permissible guidelines and impermissible inflexible policies. |
Distinguished on the basis that no statutory discretion exists in the Scheme; no evidence of fettering of discretion in the impugned decision. |
| EL v The Minister for Justice [2024] IEHC 647 |
Rationality and proportionality of Scheme’s main strand; eligibility criteria for undocumented migrants. |
Used as precedent to confirm that the Scheme’s main strand is not disproportionate or irrational and supports legitimate objectives. |
| Donnelly v Minister for Social Protection [2022] IESC 31 |
Legitimacy of policy choices and classifications; equality challenges require showing irrational and unjustifiable distinctions. |
Applied to affirm that the Scheme’s classifications are legitimate and not constitutionally illegitimate or irrational. |
| AF & I v Minister for Justice [2021] 3 IR 140 |
Policy decisions, even if harsh, are matters for the legislature; courts impose heavy onus on applicants to prove irrationality or illegitimacy. |
Supported the court’s approach to rationality and deference to legislative policy in immigration schemes. |
| Bode v Minister for Justice [2008] 3 IR 663 |
Minister’s entitlement to introduce ex gratia schemes conferring benefits without engaging legal rights. |
Confirmed that the Scheme is an ex gratia scheme conferring benefits and does not engage legal rights of parties. |
Court's Reasoning and Analysis
The Court carefully examined the eligibility criteria of both strands of the Scheme and found that the Applicant did not meet the requirements of either. The first strand requires undocumented status for at least four years prior to January 2022, which the Applicant did not have. The second strand applies only to those with a live international protection application pending for at least two years prior to 07 February 2022, which the Applicant also did not satisfy.
Regarding the exercise of Ministerial discretion, the Court found no evidence that the Minister unlawfully fettered discretion. While the Minister acknowledged the existence of residual discretion, the Scheme itself contains no provisions for its exercise, and the decision did not engage or refuse such discretion improperly. The Court rejected the Applicant’s proposition that a freestanding right exists to apply for executive discretion independent of eligibility under the Scheme or other procedures.
On the discrimination claim, the Court found the Applicant’s comparator invalid because the Scheme explicitly excludes persons in his position. The distinctions made by the Scheme were held to be rational, legitimate, and proportionate, consistent with constitutional and human rights standards. The Court noted that policy makers are entitled to make classifications and that the Applicant failed to discharge the heavy onus of proving that the Scheme’s classifications were arbitrary or unjustifiable.
The Court also considered relevant case law, distinguishing the present case from precedents involving statutory discretion and emphasizing the ex gratia nature of the Scheme.
Holding and Implications
The Court REFUSED the relief sought by the Applicant, including the quashing of the impugned decision and declarations regarding the Scheme’s eligibility criteria.
The direct effect is that the Applicant’s application under the Scheme remains refused and the impugned decision stands. The Court did not find any unlawful discrimination or fettering of discretion. No new legal precedent was established beyond affirming the rationality and legitimacy of the Scheme and the limits of Ministerial discretion within it.
Regarding costs, the Court provisionally proposed that the Respondent be entitled to costs, subject to any submissions by the parties within 10 days.