High Court dismisses judicial review of deportation proposal and refusal of regularisation scheme application.

THE HIGH COURT

[2025] IEHC 552

[Record No. 2023/1146JR]

BETWEEN

AR

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 23rd day of October 2025.

Introduction.

1. The applicant is an Egyptian national born in 1990. The matter comes before the court on foot of an amended statement required to ground an application for judicial review undated but filed on 18 December 2024. He seeks to quash a decision of the respondent dated 14 July 2023 on the basis of the assertion that the Minister refused to accept and consider the applicant's application to regularise his status in the State pursuant to ministerial discretion. Further he seeks to quash a decision of the respondent of 23 September 2024 insofar as it includes a proposal of the Minister to deport the applicant pursuant to s.3 of the Immigration Act 1999 as amended (hereafter ‘the 1999 Act’).

Background

2. Although the applicant is currently a lay litigant, he did have solicitors on record on his behalf until 30 May 2025 when the solicitors were afforded leave to come off record on behalf of the applicant.

3. The applicant arrived in Ireland on 3 September 2015 and shortly thereafter commenced working in Ireland and has continued to do so since that time. In 2018 his then employers made an application for a work permit for the applicant however in February 2019 this was refused. On 19 August 2020 the applicant was afforded a Stamp 1 permission. The duration of this permission was a term of one year and required that the applicant secure a work permit in the event that he wished to work. Because of the Covid pandemic this Stamp 1 permission was automatically renewed until 31 May 2022.

4. The applicant sought permission to remain in the State under the Regularisation of Long-Term Undocumented Migrant Scheme which came into effect on 31 January 2022 (hereinafter ‘the Scheme'). This application was made in February 2022 however a refusal was given on 28 July 2022 on the basis that he did not satisfy the required period of being undocumented. The applicant appealed that decision on the basis that the Stamp 1 permission given in 2020 was not valid therefore he was undocumented. The appeal was made on 21 August 2022 and refused on 2 August 2023 however because the refusal was not served the Minister issued a fresh refusal bearing date 23 September 2024 wherein the proposal to make a deportation order under s.3 of the 1999 Act is set out.

5. On 13 April 2023 an application was made to the Minister to exercise ministerial discretion to afford the applicant permission to remain in Ireland on the basis that he was a settled migrant and had permission to remain in the State for almost a two-year period. By

decision of 14 July 2023, being the first impugned decision, the Minister refused to exercise ministerial discretion in favour of the applicant.

6. He asserts that he has was undocumented for four years prior to 31 January 2022 in his application under the Scheme and that he is a settled migrant in his application for the exercise of ministerial discretion notwithstanding that both are based on the same factual background.

The first impugned decision

7. By letter of 13 April 2023 from the applicant’s solicitors to the Minister an application was made pursuant to ministerial discretion for permission to remain in the State either on a Stamp 4 or a Stamp 1 permission without the need for a work permit. This application was based upon the existence of a Stamp 1 permission granted on 19 August 2020 which following its automatic renewal during the pandemic continued until 31 May 2022. It is suggested based upon this permission which lasted for a period of almost 2 years permission to remain is sought on the basis that the applicant holds the status of a settled migrant giving rise to rights under Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights. It is said that having this permission for almost 2 years the applicant has integrated into life in the State which he now considers home and is an active member of his local community and of the Egyptian community in Ireland. Further he is a qualified chef. It is said that a refusal to grant him the permission sought would result in his inevitable removal from the State and will constitute an interference with his right to respect for family life.

8. Following the application aforesaid further documentation was sought by the respondent and subsequently submitted on the Applicant’s behalf. In his grounding affidavit of

26 September 2023 it is said that in the decision of 14 July 2023 the respondent refused to accept and consider his application to regularise his status in the State and failed to recognise his status as a settled migrant in the State and accordingly failed to afford him the benefit of the consideration under Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights.

9. In the statement of grounds, it is asserted that the respondent refused to accept and consider the applicant’s application and either incorrectly treated the applicant as being an unsettled migrant or failed to properly determine the issue.

10. In a letter from the respondent of 12 May 2023 prior to the decision being made an acknowledgement of the further correspondence and documentation was made and the letter concluded with: “Your client's request had not been examined in full and we will be unable to confirm if they meet the conditions for a change of immigration status until a further examination takes place.” In the decision of 14 July 2023, the Minister identifies why s.4 of the Immigration Act of 2004 (hereinafter “the 2004 Act”) does not apply including identifying that permission expired on

31 May 2022 and at the time of the application the applicant did not hold a valid permission under s.4 of the act. Insofar as ministerial discretion is concerned it is said: “Having carefully examined your application and your immigration history, and taking into account all the facts that have been submitted, the Minister has decided not to exercise her discretion in relation to your application. You have not submitted any exceptional circumstances that would warrant the Minister considering a freestanding request for permission to reside pursuant to executive discretion in respect of you.” It is also said that the decision does not interfere with any rights under the Constitution or Article 8 of the ECHR and in a decision where such interference may arise a full and proper consideration will be given to those rights under section 3 of the 1999 Act. Finally, it was noted that there was an open appeal under the Scheme.

11. In support of the application the applicant swore an affidavit of 26 September 2023 on the basis that the respondent refused his application for regularisation of his status in the State (see para. 8). It is said that the decision was unlawful as the respondent failed to recognise the applicant’s status as a settled migrant and failed to consider his application in the light of Article 40 of the Constitution and Article 8 of the ECHR.

Decision of 23 September 2024

12. Following the applicant's application for permission under the Scheme the first instance

decision of 28 July 2022 refused the relief sought on the basis that the applicant did not satisfy the required period of undocumented for a full four-year period to 31 January 2022. This

decision was appealed by the applicant on 21 August 2022 on the basis that the assertion that the applicant had a valid permission during the four-year period immediately preceding 31 January 2022 was incorrect as the Stamp 1 permission he secured of 19 August 2020 was invalid and unlawful. In the ultimate decision of 23 September 2024, the relief was refused on the basis that the decision-maker was satisfied that the Stamp 1 permission previously held by the applicant was valid. The decision concluded with an indication that the Minister proposes to make a deportation order against the applicant and identified the three options available to the applicant. This decision is now impugned in the amended statement of grounds and the reference to the decision is made at paragraph 10 of the statement of grounds on the basis: “The decision proposing to deport the applicant dated 23 September 2024 is challenged in the within proceedings.”

13. At para. 8 of the Statement of Grounds it is said that the proposal to deport the applicant, when the Minister refused to adequately address the applicant’s status in the State as a settled migrant and to consider his rights on foot of such status, in unlawful. It might be noted that no facts or jurisprudence has been advanced to support a proposition that in refusing the application for ministerial discretion to be exercised the Minister was obliged at that stage to make an assessment of the applicant's private life rights under the Constitution or the European Convention of Human Rights.

The decision of 14 July 2023

14. As aforesaid this decision was made following the application of 13 April 2023 for the Minister to exercise ministerial discretion to allow the applicant to remain in Ireland on the basis that he is a settled migrant based on his Stamp 1 permission which lasted from 19 August 2020 until 31 May 2022. It is complained that the respondent's decision is unreasonable and/or irrational in failing to consider the applicant's private life rights and/or in a refusal to accept and consider the application. It is said that the applicant is a long-term migrant and must be considered to be a settled migrant in the State however the respondent incorrectly treated him as being a non-settled migrant or failed to properly determine the issue and as a consequence the applicant will be forced to put himself into the deportation process.

15. The decision of 14 July 2023 is set out above. As is clear from the foregoing, including the correspondence which occurred between the applicant's solicitor and the Minister between the making of the application and the final decision the Minister did in fact accept and consider the application but did not engage in Article 8 rights.

16. In this regard the decision states that at the time of the application the applicant did not hold a valid permission under s.4 and does not currently hold a valid permission under s.4 (although the statement aforesaid was made in or about a consideration of the applicability or otherwise of s.4 of the 2004 Act nevertheless it is contained in the same document as the

decision pursuant to the Minister's executive discretion).

17. In addition, under the specific decision as to the exercise of ministerial discretion it is stated “having carefully examined your application and your immigration history and taking into account all the facts… the Minister has decided not to exercise her discretion… You have not submitted any exceptional circumstances that would warrant the Minister considering a freestanding request for permission to reside.” The decision went on to say that the decision under s.4 and the Minister’s executive discretion does not interfere with any rights which the applicant may have under the Constitution or under Article 8 which would be considered under s.3 of the 1999 Act. The reason for not granting ministerial executive discretion was the Applicant had not shown exceptional circumstances.

18. Although by stating “a decision by the Minister for Justice not to consider the request for permission…” may, without more, give the impression that the application was not considered, on reading the decision as a whole it is clear that the application was considered and specifically stated to have been considered. In addition, the same reference to “not to consider the request for permission” relates to a s.4 of the 2004 Act application which is clear, from the decision taken as a whole to be reference to the applicant not succeeding in a s.4 application rather than that same was not considered at all. In my view therefore the applicant has not demonstrated when one looks at the decision as a whole that the Minister failed to accept and consider the application.

19. In relation to the complaint that the Minister did not give consideration to the applicant's private life it appears to me clear that the applicant does not come within the ambit of the decision in the Supreme Court judgment in Luximon v Minister for Justice [2018] IESC 24; [2018] 2 IR 542. In that matter the applicants entered the State lawfully and were continuously lawfully present in the State to 2011. They had lawfully obtained part-time work and complied with all renewable requirements (with one exception). In their application for a change of status under s.4 of the 2004 Act the Minister did not consider constitutional or Article

8 rights and this was held by the Supreme Court to be an error on the part of the Minister given that if these rights fall to be considered under s.3 of the 1999 Act then by definition the parties in that matter would either have to leave the State or remain in the State and allow their permission to lapse and accordingly this would represent a complete change of status.

20. The Supreme Court characterised the claimants as being lawful, long duration residents whose presence was conditional upon periodic renewable permission and as expressed in para.44 of the judgment of McMenamin J the 1999 Act deals with persons who are unlawfully present in the State. The court quoted from Bode (A Minor) v The Minister for Justice [2007] IESC 62 where it was held that on the facts before the court that the making of a deportation order under s.3 of the 1999 Act was a sufficiently wide ranging process for the Minister to exercise his duty to consider the constitutional or ECHR rights of the appellant. Denham J observed that the applicants who did not succeed in an application were in the same position as they would have been before applying under the Scheme engaged in that matter and in those circumstances, she was satisfied that their right should be considered under s.3(11) of the 1999 Act.

21. In Chen v The Minister for Justice & Equality & Ors. [2021] IECA 99 the Court of Appeal was considering an application on behalf of an applicant who arrived in the State on foot of a 90-day visitor visa and on the last day made an application under s.4 of the 2004 Act aforesaid for long-term residence which was refused. A complaint was made to the effect that the minister in such refusal did not consider the applicant's private life rights in arriving at the

decision and the Supreme Court judgment in Luximon aforesaid was relied upon.

22. The refusal decision did indicate that if the applicant wished to make representations under s.3 of the 1999 Act a balancing exercise would be undertaken at that time. The Minister submitted that the Minister was not under an obligation to undertake a detailed examination of Article 8 rights with that examination being undertaken at a future deportation stage.

23. At paragraph 25 the Court of Appeal noted that in Luximon the applicants had complied fully with all requirements imposed on them by the authorities and their legal status with that of lawful long duration residents and reiterated that an assessment was required under Article

8 before a material alteration in the applicant’s status would be imposed.

The Court of Appeal held that the applicant’s reliance on Luximon was entirely misconceived. To impose an obligation on the Minister to conduct an Article 8 assessment at the time of the applicant's choosing would be to make the immigration system overly burdensome and accepted that if the applicant's approach was condoned this would wholly undermine the immigration process established and would lead to breaches of undertakings given. It was concluded that the assessment of Article 8 rights at a later stage in the context of deportation proceedings was entirely sufficient to discharge the State’s obligation under Article

8 of the Convention.

24. Given that the within applicant:

(a) entered the State without permission,

(b) worked without permission,

(c) had an application for an employment permit processed on his behalf which was unsuccessful but nevertheless the applicant continued to work,

(d) had Stamp 1 permission as aforesaid from August 2020 to May 2022 which required him to leave the State on expiry of that permission and also required him to secure an employment permit if he wished to work but nevertheless did not acquire such employment permission notwithstanding that he continued to work and did not leave the State.

(e) by the time the applicant made an application on 13 April 2023 he was unlawfully present in the State and unlawfully working in the State. I am satisfied therefore that requiring the applicant to make submissions as to constitutional and Article 8 rights which would be considered in the context of a s.3 proposal to deport is not unlawful, it did not require the applicant to change his lawful status in this jurisdiction and is in accordance with the Supreme Court decision in Bode and Chen aforesaid.

25. In the light of the foregoing, I am satisfied therefore that there was no error on the part of the Minister in not dealing with private life rights at the point when the decision as to the exercise or not of ministerial discretion was made. For this reason, there was no necessity to address the assertion that the applicant was a settled migrant at that time.

Proposal to deport

26. This proposal is made in the decision communicated to the applicant of 23 September 2024 wherein the applicant's application under the Scheme on appeal was rejected.

27. In the statement of grounds, it is said that the decision should be quashed insofar as it proposed to deport the applicant pursuant to s.3 of the 1999 Act. It is said that the respondent acted unlawfully in issuing such a proposal in circumstances where she had refused to adequately address the applicant status in the State as a settled migrant and to consider his right of foot of such a status.

28. In dealing with this argument the matters aforesaid in respect of the case law and the time in which Article 8 rights might be considered are relevant.

29. The Minister was not under an obligation in my view to deal with private life rights when exercising her ministerial discretion and given that at the date of making of the decision of 23 September 2024 no other application to remain in the State was pending on behalf of the applicant I am satisfied that there was no error on the part of the minister in proposing to deport the applicant and communicating that proposal to him in the decision of 23 September 2024. Such proposal was made on the specific basis that the applicant was in the State without permission and the applicant is a person whose deportation would in the opinion of the Minister be conducive to the common good (see s.3(2)(i) of the 1999 Act).

30. I am satisfied therefore that the proposal to deport was lawful and in accordance with s.3 of the 1999 Act.

31. The applicant has not in these proceedings demonstrated a basis for quashing either of the decisions impugned herein and therefore the reliefs claimed are refused.

Costs

32. As this judgment is being delivered electronically, I will also take this opportunity to deal with the issue of costs. In the circumstances, I propose making no order as to costs. Should the parties have any difficulty with the proposed costs order as to they should file submissions of not more than 1,000 words within 10 days of this judgment.