High Court quashes Minister's refusal of long-term residency visa due to minor traffic conviction.

Neutral Citation: [2014] IEHC 34

THE HIGH COURT

JUDICIAL REVIEW

[2012 No. 250 J.R.]

BETWEEN

DELOUR HUSSEIN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on the 24th day of January, 2014

1. The applicant is a citizen of Bangladesh and at the time of the initiation of these proceedings, had been working as a chef in

Ireland since 6th February, 2005. He initially worked in accordance with the terms of a work permit which was subsequently renewed

on a number of occasions over a period of five years on the basis of “stamp 1 conditions”. On 16th March, 2010, he applied for a

“long term residence with exemption from work permit conditions”. This form of permission enables the applicant to reside and work in

the state for a period of five years. The permit is not tied to a particular job or employer and allows the beneficiary considerably more

flexibility in obtaining employment. It is also of importance to any future naturalisation application in that it enables him to reside

lawfully in the state for a period of five years. The terms of the visa upon which he had hitherto worked in the state permitted him to

reside in Ireland on condition that he did not enter employment unless the employer had obtained a permit and he was not permitted

to engage in any business or profession without the permission of the Minister for Justice.

2. By letter dated 12th April, 2010, the applicant was informed by the long term residency section of the Irish Naturalisation and

Immigration Service (INIS) that there would be a delay in processing his application due to a backlog. He was required to ensure that

his permission to remain and work permit were kept in order and up to date while his application was under consideration. On 2nd

August, 2011, the applicant wrote to the INIS furnishing them with the additional information that on 9th December, 2010, he had

been convicted of driving a motor car without insurance at Sligo District Court and was fined €300. The fine was paid on 27th March,

2011. He provided details of the fine and confirmation that it had been paid.

3. By letter dated 3rd November, 2011, the applicant was informed that the Minister had refused the application for a s. 4 long term

residency visa. He was informed that in the course of a character check carried out by the Garda National Immigration Bureau, a

report had been received from An Garda Síochána indicating that the applicant “had come to their adverse attention” having been

convicted of the offence of driving without insurance. The applicant was advised that if this information was incorrect, the applicant

would be reassessed but that otherwise the decision would stand.

4. The applicant’s solicitors wrote to the INIS on 16th November, 2011, confirming that the information concerning his conviction was

correct. They reminded the INIS that the applicant had written personally to them informing them of the conviction and the payment

of the fine in August, 2011. A request was made that before reaching a “final decision” the submission set out in the letter be

considered. The facts of the offence were explained. It was stated that the applicant had been apprehended while driving his friend’s

car. When stopped by a garda the usual demands were made. The motor car driven by the applicant was taxed and insured and he

held a valid Bangladeshi driving license. He believed that he could lawfully drive the car. In fact, he was unaware at the time that he

needed to be a named driver on the policy of insurance in order to be covered. It was stated that he was advised by the garda to

take out insurance in his own name and present it to the garda station, but he was unable to do so because he could not obtain

insurance without an Irish driving license. He was prosecuted and pleaded guilty to the charge. In addition, a reference was included

from his employer attesting to his honesty and integrity as an employee and he expressed his deep regret that this incident had

occurred. He had been employed in the state for a period of approximately six years. It was submitted that it would be unduly harsh

and disproportionate to make adverse character findings against the applicant, particularly since the offence was not of the most

serious kind.

5. On 23rd November, 2011, the INIS replied and indicated that the Minister for Justice and Equality had reviewed the issues involved,

but had not changed his previous decision. The letter stated:-

“However, should he so wish, it is open to him to reapply. Whilst it is not possible to state that a different decision will be

made in any new application, the Department would take account of the additional time spent in the state without further

convictions.”

6. The refusal did not in any way affect the applicant’s entitlement to remain in the state on the terms of the visa granted to him up

to that point and, indeed, his working visa was renewed from time to time.

7. By order made 26th March, 2012, (Cooke J.) the applicant was granted leave to apply for judicial review seeking orders of

certiorari and mandamus against the respondent on the grounds that:-

“(a) The permission applied for is granted pursuant to the statutory discretion provided to the respondent by s. 4 of the

Immigration Act 2004. The respondent erred in law in failing to determine the application by reference to the applicant’s

particular situation and his circumstances at the time of the application. In particular, the respondent failed to weigh and

consider evidence submitted by the applicant to the effect that he has lived and worked in Ireland for seven years

without any other difficulties with the authorities.

(b) The respondent has unlawfully fettered his discretion and that of his servants or agents by adopting an unreasonable

and fixed policy to refuse long term permission to reside on stamp 4 conditions to eligible persons on the basis of

convictions for relatively minor offences.

(c) The respondents decisions (the refusal and the review decision upholding the refusal) were unreasonable and

disproportionate given the nature of the offence, the circumstances under which the offence occurred, and the

punishment administered by the District Court (a €300 fine). The outcome of the application was of considerable

significance to the applicant as stamp 4 permission for five years would permit him to change jobs and provide some

certainty in relation to his immigration/residency status into the future.

(d) The respondent failed to comply with the principles of natural and constitutional justice and the basic fairness of

administrative procedures. The respondent did not indicate to the applicant that he intended to refuse the application on

the basis of “lack of good character” because of conviction which occurred nine months after the applicant had applied

for the permission. Furthermore, the policy of the respondent that road traffic offences are considered to be serious

offences enough to warrant refusal is not published and he did not indicate, even in the review decision, if (or at what

point) an application might succeed despite the conviction.”

Long Term Residency Scheme

8. The “Long Term Residency Scheme” operated by the respondent enables non-European Union nationals who have been working in

Ireland on foot of work permits for more than sixty months to apply and be considered for a more general form of permission to remain

in the state. This is sometimes referred to as a five year “stamp 4 permission” and allows them to live and work in Ireland without the

need for a work permit for five years.

9. The eligibility requirements for the scheme as advertised and applied by the INIS are as follows:-

“Persons who have been legally resident in the state may apply for long term residency subject to the conditions below:-

• You must have a minimum of sixty months (five years) reckonable residence on the date you submit your application.

• Only legal residents in the state on work permit, work authorisation or working visa conditions will be counted as

reckonable residence for the purpose of your long term residency application. This reckonable residence must be reflected

by either a stamp 1 or stamp 4 endorsement on your passport – and not by the dates on your work permits, working

authorisation or working visa…

• Your permission to remain in the state must be up to date when you apply.

• You must be in gainful employment when you apply and during and after the application process.

• You must be of good character.

• Any period of time for which you do not have permission to remain is not counted when we calculate your reckonable

residence…”

10. The nature of the scheme was considered by Cooke J. in Saleem v. Minister for Justice, Equality and Law Reform [2011] IEHC

55:-

“6. The term “long term residency” is not one used in the Immigration Act 2004…but it appears to have its origin in what

the respondent describes as an “administrative scheme”. This appears to take the form of a notice published on the

website of the Irish Naturalisation and Immigration Service giving information as to “applications from persons who have

been legally resident in the state for a minimum of five years (i.e. sixty months) on work permits/work

authorisations/working visa conditions”.

7. Section 5 of the 2004 Act, provides that no non-national may be in the state other than in accordance with the terms

of a permission given under the Act by or on behalf of the Minister or given before the passing of that Act. Section 4

provides that an immigration officer may on behalf of the Minister give a non-national, either by means of a document or

by placing a stamp on his or her passport, an authorisation “to land or be in the state”. Section 4 does not prescribe any

conditions for the grant of such a permission. Subsection (3) does, however, prescribe a series of circumstances in which

an immigration officer, on behalf of the Minister, may refuse to give a permission and subs. (6) provides that a permission

can be given subject to such conditions as to duration of stay, engagement in employment, business or profession as may

be thought fit.

8. In effect, therefore, the Minister would appear to have a statutory discretion in granting permission to land or to be in

the state and the “administrative scheme” thus published amounts in practice to a statement as to the circumstances

and conditions in which the Minister is prepared to entertain and consider applications for the grant for permission to

remain on the basis of a “stamp 4” endorsement which will be valid for a period of five years.”

11. The respondent submits that he was under no duty to bring this scheme into operation or to continue to operate it. Furthermore,

it is contended that a refusal by the respondent under the scheme does not affect the applicant’s substantive and/or fundamental

rights because the applicant must already be lawfully present in the state to benefit from the scheme and remains so in the event of

a refusal. As indicated in the correspondence, the applicant was invited to renew his application at any time when the matter could

be looked at afresh. Therefore, the legality of the applicant’s presence in the state is not in any way determined or affected by the

respondent’s decision to accept or refuse permission under the scheme.

12. An analogy was suggested with the IBC05 Scheme, which became known as the “Mother and Child Scheme”, considered by the

Supreme Court in Bode v. Minister for Justice, Equality and Law Reform [2006] IESC 341. Under that scheme the Minister introduced

an administrative arrangement for the consideration of applications for permission to remain in the state based on the parentage of

Irish born children, born before 1st January, 2005, after the constitutional amendment changing the law excluding from automatic Irish

nationality and citizenship, a child born to parents neither of whom was entitled to Irish citizenship at the time of the child’s birth.

Applications were accepted under the scheme for a limited period of time between January and March, 2005. A general policy was

adopted of granting applications provided certain conditions were fulfilled, one of which was proof of continuous residence in the

state since the birth of the child. These applications were considered and determined without a substantive analysis of the legal

rights of an Irish citizen child or foreign national parents. The materials and evidence produced were examined in order to verify

whether the terms of the scheme had been complied with. The permission was granted subject to a number of conditions, including a

condition that the person would obey the laws of the state and not become involved in criminal activity. The evidence indicated that

the scheme was operated as an administrative scheme. Individual applications were not examined in respect of their underlying merits.

A person who applied under the IBC05 Scheme, but whose application was rejected, was not placed in a more prejudicial position than

before the scheme was introduced. If an application was refused under the scheme, the applicant could still assert his/her rights and

entitlement to remain in the state.

13. In the High Court, Finlay Geoghegan J., relying upon the engagement of the fundamental rights of the child in question and by

reference to the proportionality test, quashed the decision but the Supreme Court unanimously allowed the state’s appeal. Denham J.

(as she then was) delivered the judgment of the court in which she stated:-

“62. …while steps taken by a state are often restrictive of the movement of foreign nationals, the state may also exercise

its powers so as to take actions in a particular situation where it has been determined that the common good is served by

giving benefits of residency to a category of foreign nationals – as a gift, in effect. The inherent power of the state

includes the power to establish an ex gratia scheme of this nature. Such an arrangement is distinct from circumstances

where legal rights of individuals may fall to be considered and determined.

63. Exercising such power, in light of the unique circumstances in Ireland in 2005, in addition to the specific statutory

procedures, the special administrative scheme, the IBC05 Scheme was introduced by the Minister. The Minister obtained

government approval. It was a generous scheme, for those who came within its criteria. It was an example of the state

exercising its discretion to allow specific foreign nationals to reside in Ireland. Yet, the foreign nationals still retained all

rights under the formal procedures.

64. The IBC05 Scheme was administered by the IBC05 unit in the Department of Justice, Equality and Law Reform. It was

a sui generis scheme. Under this scheme leave to reside was granted on general principles.

65. The scheme was introduced by the Minister exercising the executive power of the state, to address in an

administrative and generous manner a unique situation which had occurred in relation to a significant number of foreign

nationals within the state. However, those who did not succeed on their application under this scheme remained in the

same situation as they had been prior to their application. They were still entitled to have the Minister consider the

constitutional and Convention rights of all relevant persons.

66. The scheme enabled a fast, executive decision, giving a benefit to very many people. However, a negative decision in

the IBC05 Scheme did not affect any substantive claim for permission to remain in the state. in other words, an adverse

decision to an applicant under the IBC05 Scheme left the applicant in no worse position than he or she was prior to the

application as no decision had been made on any substantive rights. …

76. The basic premise of the applicants, and of the High Court, that the constitutional and Convention rights of the

applicants were in issue in the IBC05 Scheme, was misconceived. Thus, much of the pleadings, judgment and submissions

related to matters not in issue.

77. The High Court found that the second applicant did not comply with the requirements of the scheme. However, it

then fell into error in its analysis of the IBC05 Scheme.

78. I am satisfied that the scheme was an exercise of executive power by the Minister. It did not purport to address, nor

did it address, constitutional or Convention rights. It was a scheme with clear criteria. On the face of the documents the

criteria were applied to the second applicant, and he failed to meet the criteria.

79. As the IBC05 Scheme did not address constitutional or Convention rights, applicants who were not successful were

left in exactly the same position as they had been prior to their application. There was no interference with any

constitutional or Convention rights. Consequently, it was an error on behalf of the High Court to consider the application

of the scheme as an arena for decision making and constitutional or Convention rights, whether they be as considered by

the High Court:

(i) the rights of the child under Articles 40.3 and 41 of the Constitution;

(ii) rights under Article 8 of the European Convention on Human Rights; or

(iii) rights under Article 14 of the Convention or other rights.

It follows also, that in establishing the criteria for judicial review, the High Court took too expansive an approach.

Neither constitutional nor Convention rights were in issue, at issue was whether or not the Minister acted within the

stated parameters of the executive scheme.

80. Insofar as the issue of the rights under the Constitution and the Convention were considered and decisions made on

these issues, it was a premature analysis by the High Court. Issues as to the constitutional and Convention rights of the

applicants have yet to be considered by the Minister. Insofar as the review extended into this arena, it was in error.”

14. I am satisfied that the parameters of the Long Term Residency Scheme are clearly set out in the published notice and that it is

intended to confer benefits on persons who do not have a right to such long term residency. One of the conditions of a grant of the

visa is that the person be of good character. Unsurprisingly, an inquiry was made with An Garda Síochána as to whether the applicant

had previous convictions. The relevance of his previous conviction was clear to the applicant in that he furnished details of it in his

letter of August, 2011. It was clearly understood that the issue of good character (including previous convictions) would be

considered in determining whether to grant the permission.

15. The nature of the scheme was further considered by Cooke J. in Saleem v. Minister for Justice, Equality and Law Reform [2011]

IEHC 223:-

“37. In the first place, it is necessary to point out that a migrant worker does not have a “right” to a permission issued

under s. 4 of the Act of 2004, for long term residency or to any period of continuing residency upon renewal of an existing

permission. The grant of permission for continued presence in the state is a matter for the discretion of the respondent

under that section (emphasis added). The effect of the publication of a particular scheme such as the Long Term

Residency Scheme is, at most, to give rise to an expectation on the part of a migrant worker that an application made on

foot of the scheme will be considered and either granted or rejected in accordance with the terms and conditions of the

scheme. As already mentioned, it is undisputed that the primary condition in this Long Term Residency Scheme at all

material times was that an applicant must have been legally resident for a minimum period of five years (or sixty months)

on the basis of work permit conditions.”

16. It is clear that the scheme has a number of similar aspects to that of the IBC05 Scheme. It has a number of conditions with which

an applicant must comply. The applicant does not have a right to a decision in his/her favour. A negative decision did not change the

applicant’s status in the state. However, unlike the IBC05 Scheme, this scheme is not sui generis. It applies to a much broader

category of persons. It was not introduced to address a particular unfairness to the persons affected by a unique event, in that case

a constitutional amendment. It was not a scheme which was closed to applicants after a period of time. It is operated as part of the

general scheme available to immigrant workers. A decision is made under s. 4 of the Immigration Act 2004, within clear administrative

parameters laid down for reasons of policy which it is not for the court to question. However, a decision requires an assessment of

the merits of certain aspects of the case, for example, whether the applicant is of “good character”. It is not simply a box ticking

exercise whereby the incontrovertible history of the applicant will result in a grant or refusal. An assessment has to be made of the

applicant’s character. A condition of “good character” is not a specific requirement for a grant of permission to be or remain in the

state under section 4. Indeed, in respect of the IBC05 Scheme, no such requirement was made and all that was required as a

condition of qualification was that the applicant undertake to obey the laws of the state and not become involved in criminal activity.

17. As noted by Cooke J. in Saleem, the grant of permission under the scheme is a matter for the exercise of discretion by the

respondent under s. 4. Section 4(1) of the Immigration Act 2004, permits an immigration officer on behalf of the Minister to give a

non-national permission to land or be in the state. Section 4(3) provides the grounds upon which permission may be refused. Section

4(6) provides that an immigration officer may, on behalf of the Minister, attach to a permission to land or remain “such conditions as

to duration to stay and engagement in employment, business or a profession in the state as he or she may think fit”. Section 4(7)

provides for the renewal or variation of a permission “to be” in the state. Section 4(10) provides that in performing functions under

subs. (6) an immigration officer shall have regard to all of the circumstances of the non-national concerned known to the officer or

represented to the officer by him or her and, in particular, to the following relevant matters:-

“…

(b) the intended duration of the stay in the state,

(c) any family relationships…with persons in the state,

(d) his or her income, earning capacity and other financial resources,

(e) the financial needs, obligations and responsibilities which he…is likely to have in the foreseeable future,

(f) whether he is likely to comply with any proposed conditions as to duration of stay and engagement in employment,

business or profession in the state,

…”

It is clear that in considering the facts of the case, all of these matters were obviously relevant and to be taken into account. The

immigration officer is also entitled and required to have regard to “all of the circumstances of the non-national concerned known to

the officer”, and to consider all circumstances made known to him by the applicant. These circumstances clearly include convictions

of the applicant. However, the decision is also subject to the provision that the permission (or its renewal under subs. (7)) may be

refused under subs. (3) if the officer is satisfied that the non-national has been convicted (whether in the state or elsewhere) of an

offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe

penalty.

18. It is clear, therefore, that before the administrative parameters for long term residency were conceived, the issue of previous

convictions was considered as a matter of policy by the Oireachtas and a discretion was specifically vested in the immigration officer

to refuse leave “to be” in the state or to remain following its renewal to an applicant convicted of an offence to which a penalty of

twelve months imprisonment or more may apply.

19. Section 56 subs. (1) and (3) of the Road Traffic Act 1961 (as amended by s. 18 of the Road Traffic Act 2006) creates the

offence of driving a motor vehicle without insurance. The penalty provided under s. 56(3) renders the convicted person liable on

summary conviction to a fine not exceeding €5,000 or, at the discretion of the court, to imprisonment for a term not exceeding six

months or to both such fine and imprisonment. It is the clear that the possible penalty falls well short of the twelve month period of

imprisonment provided under s. 4(3). It is to be noted that the parameters for the grant of long term residency do not indicate that a

previous conviction of a lesser kind may be taken into account under Section 4. Section 4(3) indicates the extent to which the

legislature intended previous convictions to be taken into account.

20. The “good character” condition contained in the administrative scheme also applies to a consideration of whether a certificate of

naturalisation should be granted under s. 15 of the Irish Naturalisation and Citizenship Act 1956, as amended. In Berkut v. The

Minister for Justice, Equality and Law Reform (Unreported, High Court, Ryan J., 12th October, 2011) the condition was described as a

“prerequisite that could not be overlooked” by the Minister in considering an application. In that case Ryan J., though recognising that

the case before him was somewhat unusual, nevertheless concluded that the decision as to good character was, notwithstanding the

wide meaning that may be attached to that phrase and the wide discretion of the Minister to grant or refuse a certificate of

naturalisation, amenable to judicial review. In that case a young man had been arrested in a supermarket with a toy gun on New

Year’s Eve. He was not prosecuted but was refused citizenship on the basis of an adverse finding as to his character. The failure of

the Minister to clarify the situation and inquire into the explanation offered by the young man for his behaviour amounted to a breach

of appropriate procedure. It was found to be unfair and unreasonable. However, it is equally clear from the decision that had proper

procedures been followed, it was open to the Minister to determine that notwithstanding the failure to prosecute the young man, a

finding might still have been open that he was not of “good character”.

21. It was made clear by Cooke J. in the Saleem case that the scheme for the granting of long stay residency under stamp 4 is

operated under s. 4 of the Immigration Act 2004. The Minister exercises this discretion within the terms of the scheme. It is clear

from a letter of 5th October, 2011, that issued in a different case that there was a policy in the INIS, long term residency section, to

refuse applications from those convicted of offences such as driving without insurance because it was considered to be a serious

offence. In that case, because the applicant had been convicted of driving without insurance, a decision was made not to grant long

term residency. In this case the applicant failed because he committed the same offence and was, therefore, deemed not to be of

good character. It was made clear that the applicant was refused as a result of his criminal conviction alone. That refusal is

inconsistent with the spirit, terms and intention of section 4(3). The “good character” condition of the residency scheme, insofar as it

permits a refusal because of a conviction for a s. 56 offence, is at variance with the policy of the Oireachtas as expressed under the

Act. The respondent has offered no evidence to explain the letter or to refute the existence of such a policy. I am satisfied that the

unexplained letter, together with the decision in this case, indicate that such a policy exists. I am also satisfied that the respondent

has unlawfully and unreasonably restricted his discretion by adopting this policy and moreover, in refusing the application on the sole

ground of this conviction was acting contrary to the intention of the Oireachtas as set out in s. 4(3) which precisely delineates the

nature of a criminal conviction which may result in a refusal. I have no doubt that the Minister is entitled to construct a conditional

scheme for particular classes of applicants as he had done in respect of the various stamp 0, stamp 1, stamp 2, 3 and 4 visas to be

and remain in the state. However, in doing so the respondent must act within the framework of the statutory discretion conferred by

section 4.

22. It was also submitted that the court should have regard to the provisions of Council Directive 2003/109/EC of 25th November,

2003, concerning the status of third country nationals who are long term residents. Ireland opted out of this Directive. However, it is

said that regard should be had to its terms and that s. 4 of the Immigration Act 2004, should be interpreted in a manner consistent

with it and the consensus apparent among other European Union members and furthermore, that these principles should inform the

discretion to be exercised in the applicant’s case.

23. Paragraph 8 of the Recital of Council Directive 2003/109/EC provides that third country nationals who wish to acquire and

maintain long term residency status “should not constitute a threat to public policy”. The notion of public policy may cover a

conviction for committing a serious crime. The Directive requires subscribing member states to grant long term resident status to third

country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of

the relevant application. Article 6 confers on member states the discretion to refuse long term residence status on grounds of public

policy or public security. It provides:-

“When taking the relevant decision, the member state shall consider the severity or type of offence against public policy

or public security, or the danger that emanates from the person concerned, whilst also having proper regard to the

duration of the residence and the existence of links with the country of residence.”

It is submitted that s. 4 of the Immigration Act, 2004 should be interpreted in a manner consistent with the Directive.

24. The applicant relied on Hamza v. The Minister for Justice, Equality and Law Reform [2010] IEHC 427, in which Cooke J.

considered the nature of marriage recognisable for the purposes of family reunification under s. 18(3)(b)(i) of the Referendum Act

1996. The term “marriage” was not defined in the Act. Cooke J. considered the provisions of Council Directive 2003/86/EC of 22nd

September, 2003, on the right to family reunification. He considered that s. 18 had been incorporated into the Refugee Act in the

interests of facilitating the reception of refugees and ensuring their personal wellbeing while in the state. Ireland had not opted into

the Council Directive. However, notwithstanding the non-binding nature of the Directive, he concluded that it was desirable that the

provisions of s. 18 should be construed and applied so far as statutory interpretation permits in a manner which is consistent with the

policies and the consensus apparent among the member states of the European Union and the objectives of the Council Directive. He

noted that the approach of the Directive towards the relationship between refugee (sponsor) and spouse was based upon the

assessment of the reality of the conjugal relationship rather than upon the availability of formal verification of the legality of the

marriage contract in a form recognisable in Irish law. He concluded:-

“39. In the judgment of the Court, in the absence of any contrary requirement imposed by the literal interpretation of s.

18(3)(b) of the Act, a purposive construction of the provision consistently with such authoritative guidance leads to the

conclusion that the recognition of the marital relationship of spouse and refugee ought not to be confined to cases in

which proof is forthcoming of a marriage validly solemnised in foreign law and recognisable in Irish law. A refugee who is

able to demonstrate the existence of a subsisting and real marital relationship with the person the subject of the

application is entitled to have the martial relationship recognised for the purposes of reunification under section 18 unless

some reason of public policy intervenes to prevent its recognition. This will be particularly so in cases such as the present

one where it can be demonstrated that the relationship has subsisted over many years; that the marriage has been

consummated and it is not disputed that there are children of the relationship of whom the refugee is a parent. In the

judgment of the Court, it is incumbent on the Minister, in such cases, to give due weight to those factors above all,

notwithstanding deficiencies that may be apparent in formal documentary proofs of the ceremony.”

25. I am satisfied that s. 4(3) of the Immigration Act is clear in that it only permits a refusal of permission on the basis of criminal

conviction which carries a potential penalty of imprisonment of twelve months or more. A permission to remain in the state may be

renewed under subsection (7). Section 4(3) is a more precise provision than Article 6 of the Directive in that it clearly identifies the

seriousness of the offence of which the applicant must be convicted before it is permissible to consider a refusal on that basis. It

confers a discretion to refuse to grant a long term residency status on grounds of public policy. Though the state has opted out of

the Directive, s. 4 appears to be in accordance with its general principles. Therefore, I am satisfied that it is not necessary to employ

the provisions of the Council Directives as an aid to interpretation. The ordinary words of s. 4 are clear as is the purpose of the

section to define the nature of the discretion vested in the Minister to refuse an application for permission to remain and to confine it

to the defined class of convictions – a less serious conviction may not be relied upon as the sole reason for a refusal.

26. A number of other submissions were made to the court. It was submitted that the Minister failed to consider the applicant’s

explanation as to how the offence was committed and the consequences for the applicant of a refusal. This is clearly not the case.

Following receipt of the solicitor’s letter of 16th November, 2011, which contained the explanation and other submissions to which I

have already referred, the Minister reviewed his previous decision but not in the applicant’s favour. I have no doubt also that there is

no substance to the contention that the Minister did not adequately consider the consequences of the refusal: they were clear from

the submission, the nature of the application and the legislation under which work permits and applications for certificates of

naturalisation are made, all of which were well known to the Minister and his officials.

27. The applicant also claims that the Minister’s refusal was disproportionate because the decision was made some twenty months

after the conviction. The applicant had worked and paid taxes in the state for six years and otherwise had not come to the attention

of the authorities and remained in gainful employment. It was submitted that undue weight was given to the conviction which was for

a minor offence and weight should have been given to the previous good character of the applicant and the length of time for which

he worked in the state.

28. The applicant is unable to identify any constitutional right or right under the European Convention on Human Rights adversely

affected by the refusal. His right and entitlement to remain in the state on the basis of the visa held by him at the time of the

decision remained unchanged. Undoubtedly, if successful, the applicant would obtain a benefit. However, he is not entitled to that

status as of right. It is given in the exercise of ministerial discretion. In addition, it has at all material times been made clear to him

that he may reapply and that any subsequent conviction free period would, of course, be considered. I am not satisfied that the issue

of proportionality as canvassed is relevant to this case since no fundamental right of the applicant is engaged or affected by the

decision. This is not a case in which he faces deportation under which a balancing of rights has to be considered by the court, as in

the European Convention cases cited.

29. I am, therefore, satisfied for the reasons given, that the applicant is entitled to an order of certiorari quashing the respondent’s

decision of 3rd November, 2011, and the review of that decision of 23rd November, 2011, on grounds 1B and C.