High Court dismisses applicants' challenge to student visa non-renewal, upholding Minister's absolute discretion under trafficking act.

[2016] IEHC 132

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 687 J.R.]

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, AS AMENDED

BETWEEN

YASWIN BALCHAND, CHANDRIKA GOPEE AND CIERON LAKSH BALCHAND (A MINOR SUING BY HIS FATHER AND NEXT FRIEND

YASWIN BALCHAND)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of March, 2016

1. The applicants in this case are two students from Mauritius and their six year-old son. The parents challenge the decision of the

Minister to refuse to renew their permissions to be in the State and complain that account should have been taken of their private

and family life.

2. On 7th December, 2006, the first named applicant arrived in the State in possession of a “stamp two” student permission.

3. On 21st June, 2008, the first and second named applicants married. Shortly thereafter on 25th June, 2008, the second named

applicant arrived in the State, also in possession of a stamp two permission. At the time of the entry of the applicants into Ireland,

Mauritius was not a country whose nationals required a visa to enter. That situation has changed in the meantime.

4. On 17th July, 2009, the third named applicant was born in the State.

5. With effect from 1st January, 2011, a new policy document was adopted regarding non-EEA students. It set out time limits for the

pursuit of degree courses and non-degree courses, and an overall time limit of seven years’ presence in the State as a student. While

great stress has been laid on the lack of formality at the time of original entry, that is irrelevant because policies may lawfully tighten

up from time to time and it is clear that the applicants were properly subject to the 2011 policy as persons with no other right or title

to be in the State than such permissions as the Minister saw fit to grant as she saw fit.

6. The policy document did not set out any clause whereby the terms of the scheme could be waived in exceptional circumstances. It

was accompanied by a further document for the information of persons in a transitional category such as the applicants reaffirming

the maximum period of seven years’ presence in the State (exhibited at exhibit KOS4 to the affidavit of Kevin O’Sullivan).

7. The document made abundantly clear that presence in the State as a student would not be taken into account for the purposes of

long-term residency, and that no family reunification rights arose.

8. On 19th December, 2013, shortly before the expiry of the first named applicant’s permission, solicitors for the applicants sent a

lengthy (125-page) submission to the Minister seeking a variation of the permissions and to change to “stamp four” status (namely

residence in the State with an entitlement to enter employment and receive social welfare payments) based on their long residence.

9. On 30th January, 2014, the first named applicant’s permission expired. He was, thereafter, unlawfully in the State until 22nd

October, 2014, when the application for long-term residency was refused by the Minister pursuant to s. 4(7) of the Immigration Act

2004. The parents were directed to leave the State by 3rd December, 2014. The first named applicant was granted a temporary and

transitional permission to be in the State for the period between 22nd October, 2014 and 3rd December, 2014, in order to finalise his

affairs. A similar clause was included in a letter to the second named applicant, but in that regard it had been overlooked by the

Minister and she still had a subsisting permission at that point.

10. An application for leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was made to Mac Eochaidh J. on 20th

November, 2014, within time. Leave was granted on 1st December, 2014.

11. As of the date of the hearing, 17th February, 2016, there had been no proposal to make a deportation order.

Is the Minister required to consider private and family life when deciding on a permission?

12. The present application arises in slightly unusual circumstances in that it raises an issue very similar to that decided by Barr J. in

Luximon v. Minister for Justice and Equality [2015] IEHC 227 (20th March, 2015), a decision regarding the extent to which the

Minister is required to give consideration to private and family rights under Art. 41 of the Constitution or art. 8 of the ECHR, in the

context of persons who applied for permission at a time when they did not have a subsisting permission to remain in the State. In the

present case, the parents did have subsisting permissions as of the date of their application.

13. On what might be termed a first principles basis, having regard to cases such as East Donegal Cooperative Livestock Mart v.

Attorney General [1970] I.R. 317, and to s. 3 of the European Convention on Human Rights Act 2003, I would venture to hope that it

would be uncontroversial to suggest that private and family rights (or any constitutional or ECHR rights) should be considered in the

context of an administrative decision if two conditions are met:-

(i) that applicant enjoyed those rights in the first place to the appropriate threshold of substance and materiality; and

(ii) that those rights were in fact improperly interfered with by the decision to a material extent.

14. Clearly, an applicant cannot quash a decision by reference to rights which he or she does not enjoy. Nor can a decision be

quashed if it does not interfere with those rights in an unconstitutional or unlawful manner.

15. To the extent that Luximon is to be read as incorporating the test I have just referred to, then I would have no hesitation in

following such an approach. The real question is whether either or both of those conditions are met in circumstances such as the

present case.

Are private or family rights engaged?

16. In Luximon, Barr J. took the view that the applicant’s rights in that case were sufficiently engaged to warrant the quashing of the

refusal of a permission by reason of a failure to consider private and family rights.

17. The one thing that the court in Luximon cannot be criticised for is failing to engage in a form of “inspired legal clairvoyance” (per

O’Donnell J. in People (D.P.P.) v. J.C. [2015] IESC 31 at para. 53) in anticipating decisions that had not, at that time, being handed

down.

18. Subsequent to Luximon, the Court of Appeal in C.I. v. Minister for Justice, Equality, and Law Reform [2015] IECA 192 (30th July,

2015), at paras. 42 to 46, held that, in general, persons whose situation was “precarious” did not enjoy private and family rights of

sufficient weight to engage art. 8.

19. Furthermore, and also after the decision of the High Court in Luximon, the Supreme Court gave judgment in P.O. v. Minister for

Justice and Equality [2015] IESC 64 (16th July, 2015). In that case, both MacMenamin J. (at para. 26) and Charleton J. (at para 35)

referred to the minimal art. 8 rights of persons whose situation in the State is precarious.

20. In Li (No. 1) v. Minister for Justice and Equality (No. 1) [2015] IEHC 638 (17th October, 2015), I had also come to the view that

persons whose presence in the State was either illegal or precarious generally enjoyed art. 8 rights that were either of minimal weight

or non-existent (at para. 65(iii)).

21. Applying C.I. and P.O., as I am required to do, I conclude that students who are admitted into the State pursuant to a scheme

with a very clear seven-year maximum duration of permissions are persons who firmly fall into the “precarious” category, and in

general, their private and family rights to remain in the State are minimal to non-existent and do not need to be considered by the

Minister at any stage of the process, because they simply do not reach the level of significance required to engage such

consideration.

22. While there will of course be some disruption to the applicants, including the third named applicant, this is not so severe as to

mean that re-location back to the country of nationality is not possible, especially bearing in mind that children often find it easier

than the adults to adapt. The point is made that the child speaks English, but no evidence has been presented that this will impair life

in Mauritius, which is a partly-Anglophone country, or more fundamentally that he could not learn any of the other languages used in

that country in the years ahead.

23. In the case of these particular applicants, that conclusion is reinforced by a number of features. This family will not be split up by

the non-renewal of the permission. They will presumably return to Mauritius as a family. There is nothing to prevent them from

enjoying a private and family life in Mauritius. There has been no military coup, civil disorder or other emergency of which the court

has been made aware which would render such rights impossibly or even unduly difficult to assert back home. Nor, importantly, is

there anything which would prevent them from making an application for permission to return to this State from their home country.

Even a citizen of a non-visa country could in principle seek a permission under s. 4 of the Immigration Act 2004 from outside Ireland.

There is nowhere near sufficient evidence whereby the applicants could even begin to make the case that they are “settled

migrants”, which they clearly are not. The whole thrust and basis of the student scheme is that such students will honour their part

of the bargain and leave the State, at the latest on the expiry of the seven-year period.

24. The reference to matters preventing the exercise of family rights otherwise than in the State is by way of reminder that the ever-

present spectre of “exceptional circumstances” probably cannot be banished from even this context, but that does not render a

ministerial decision invalid unless the applicant concerned is actually in that exceptional category. The Minister does not have to

consider whether exceptional circumstances exist in every case, any more than she has to consider whether to waive reasons that

she has decided upon (as discussed in my judgment in Okornoe v. Minister for Justice and Equality [2016] IEHC 100 (15th February,

2016) or a court has to set out reasons for not suspending a sentence it has decided upon (Maher v. Minister for Defence [2016]

IEHC 53 (Noonan J., 3rd February, 2016)).

25. Overstaying is not a victimless wrong. If individuals fail to comply with the terms of the permission, this will only increase the

pressure on other applicants and indeed invite further scrutiny of such applicants. If students are to be held to acquire private and

family rights of the kind that appear to me to be incompatible with their precarious status, that will only have the effect of

significantly curtailing the number of students that are likely to be admitted into the State, to the detriment of a much larger group of

people and indeed to the State itself.

26. The applicants relied on a number of English decisions, particular Secretary of State for the Home Department v. Pankina [2010]

EWCA Civ 719 (23rd June, 2010) and Patel v. Secretary of State for the Home Department [2013] UKSC 72 (20th November, 2013)

at para. 32, which have taken much more extensive view as to the rights of persons on a limited permission in the context of

permission renewal. Munawar v. Secretary of State for the Home Department (20th October, 2011 I.A./26534/2010 (Upper Tribunal,

Immigration and Asylum Chamber)) is also such a case, where refusal to renew a three year student permission was deemed to be

disproportionate under art. 8. It seems to me that these decisions set the bar too low in terms of the circumstances required to

engage art. 8, as indeed seems to be recognised in some English decisions which do not conspicuously follow such an approach (see

Anjum v. Secretary of State for the Home Department (29th January, 2014 I.A./00453/2013 (Upper Tribunal, Immigration and Asylum

Chamber)).

27. The requirement for a quite substantial level of interference with private and family life before art. 8 is engaged is consistent with

the decision of Edwards J. in T.M. v. Minister for Justice, Equality and Law Reform [2009] IEHC 500, where it was held that there was

no need to consider family rights because of an absence of proof that they were engaged.

28. The European Court of Human Rights has held in a number of cases that family rights did not fall to be considered for those in a

“precarious” situation apart from exceptional circumstances. Such a statement is to be found in a large body of decided cases

including: Chandra v. the Netherlands (admissibility decision, application no. 53102/99, 13th May, 2003); Benamar v. the Netherlands

(admissibility decision, application no. 43786/04, 5th April, 2005); Priya v. Denmark (admissibility decision, application no. 13594/03

6th July, 2006); Da Silva v. Netherlands, (application no. 50435/99, 31st January, 2006, [2007] E.H.R.R. 72 at paras. 39 and 43);

Darren Omoregie v. Norway (application no. 265/07 31st July, 2008 para 64); and B.V. v. Sweden (application no. 57442/11, 13th

November 2012).

29. Reliance was placed on Jeunesse v. Netherlands (application no. 12738/10, 3rd October, 2014). That case related to an applicant

who had been living in the Netherlands for 17 years prior to the date of the judgment and moreover was under an obligation for the

start of that period under Dutch family law to cohabit with her husband (para. 102). The Grand Chamber emphasised that toleration of

the presence of an alien awaiting a decision on residency does not automatically entail an obligation under art. 8 to allow him or her

to settle, any more than “confronting the authorities of the host country with family life as a fait accompli” creates such an

obligation (para. 103). The court emphasised the distinction between “settled migrants” as persons already formally granted a right of

residence, and other non-nationals (para. 104).

30. The court referred to the margin of appreciation enjoyed by the State (para. 106), a point also emphasised in Tuquabo-Tekle v.

the Netherlands (application no. 60665/00, 1st December, 2005) at para. 42 (see also Ahmut v. the Netherlands (application no.

21702/93, 28th November 1996, 1996-VI 2017 at 2031, para. 63)).

31. It also said that art. 8 “cannot be considered to impose on a State a general obligation to respect a married couple’s choice of

country for their matrimonial residence” (Jeunesse, para. 107, a point also made in Tuquabo-Tekle at para. 43, citing Gül v.

Switzerland (application no. 23218/94, 19th February, 1996, [1996] 22 E.H.R.R. 93 at para. 38 and Ahmut at para. 67(c))). Reference

was also made to the conclusion that the rights of an unlawful migrant cannot be equated to that of a settled migrant (Jeunesse,

para. 102, citing Useinov v. the Netherlands (application no. 61292/00, 11th April 2006)).

32. The court also emphasised that “[a]nother important consideration is whether family life was created at a time when the

persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the

host Stat would from the outset be precarious” (Jeunesse, para. 108), an observation particularly apposite to the applicants in the

present case. Other decisions to the same effect include: Abdulaziz, Cabales, and Balkandali v. UK (application nos. 9214/80,

9473/81, 9474/81, 28th May, 1985, series A no. 94 p. 94) para. 68; Mitchell v. UK (application no. 40447/98, 24th November, 1998);

Ajayi v. UK (application no. 27663/95, 22nd June, 1999); M. v. UK (application no. 25087/06 24th June, 2008); da Silva, para. 39;

Arvelo Aponte v. the Netherlands (application no. 28770/05, 3rd November, 2011 paras. 59 to 61; Butt v. Norway (application no.

47017/09, 4th December, 2012) para. 78.

33. The court noted that where children are involved, their best interests must be taken into account, albeit that alone they cannot

be decisive (Jeunesse, para. 109). Having said that, the present case involves an intact family and does not raise questions such as

those considered in Tuquabo-Tekle where the issue was the refusal of permission for a child outside the state to join the applicant

(see para. 49 of that case)

34. Ultimately, the court in Jeunesse found that “[w]here confronted with a fait accompli the removal of the non-national family

member by the authorities would be incompatible with Article 8 only in exceptional circumstances” (para. 113). Having identified

particular special features of the case (particularly the fact that all members of the applicant’s family were Dutch nationals, she held

Dutch nationality at birth and only lost it by operation of law, her very long presence in the Netherlands, and the fact that

deportation would break up the family in the circumstances) it concluded that “the circumstances of the applicant’s case must be

regarded as exceptional” (para. 122). There is simply no analogy between Ms. Jeunesse and the applicants in the present case.

Similarly, in Butt v. Norway, rights under art. 8 were enjoyed by non-settled migrants, but the context for that finding is the express

statement at para. 90 that “the circumstances of the present case were indeed exceptional”.

35. The Strasbourg jurisprudence clearly establishes the general rule that the private and family rights of non-settled migrants are

generally minimal to non-existent, although there may be exceptional circumstances to the contrary. The applicants in the present

case have not established such exceptional circumstances. I do not consider that the applicants enjoy any rights under Arts. 40.3 or

41 of the Constitution of relevance to this case that are greater than those they can assert under art. 8 of the ECHR.

Are such rights interfered with by the refusal of an application for renewal of permission?

36. If I am wrong about the question of whether the applicants enjoy private and family rights of such significance as to engage any

of the constitutional or ECHR provisions on which they rely, the question arises as to whether any such rights are, in fact, interfered

with, to the necessary extent to trigger an obligation to consider them, by the decision of the Minister not to grant the present

permission application.

37. In Luximon, Barr J. held that it was not a sufficient answer to such a claim that the rights could be considered in the deportation

process (para. 154). I would have no difficulty in following this finding, in particular on the basis, adverted to by him, that it would not

be appropriate to hold that, in order to obtain a remedy, the applicants must first put themselves in an unlawful position whereby

they would become liable to a proposal to deport. Legality is a seamless requirement, and the State cannot in effect require a person

to act unlawfully in order to claim a benefit to which he or she should be entitled.

38. However, no argument (and certainly no developed argument) appears to have been addressed to Barr J. on the question of

whether those rights could have been vindicated by simply requiring the applicants to renew their application from outside the State

rather than await the deportation process. This question is not decided upon in the judgment. Mr. David Conlan Smyth S.C., who

appeared (with Mr. Anthony Moore B.L.) for the respondent, also appeared for the State in Luximon, and did not have any

recollection of making that argument. Ms. Patricia Brazil B.L. who appeared (with Mr. Michael Lynn S.C.) for the applicants, and also

appeared in Luximon, suggested that there may have been some brief mention of the argument on the third day of the hearing in

Luximon. However it seems to me from the judgment that this submission, may have been made in the context of a slightly different

point, which I refer to below, and in any event clearly was not on any developed basis because it is not decided upon. The question

of whether an applicant can lawfully be required to make a given application from outside the State does not feature in the judgment

apart from a brief mention as part of a longer quoted extract at para. 62 from the judgment of Hardiman J. in F.P. v. Minister for

Justice, Equality and Law Reform [2002] 1 I.R. 164 at pp. 173 to 74 in which reference is made to the normal system for entry to the

State being from outside and that this should not be by-passed, and a reference to a submission from the respondent as to how the

decision in Tuquabo–Tekle could be distinguished (para. 94) (which seems to me to be the probable context for Ms. Brazil’s

recollection as outlined to me). That submission of the respondent was accepted by the court (para. 152), but the court had not

been asked to go on to address the follow-on argument that was expressly made to me by the respondent in the present case, to the

effect that if in certain circumstances, the consideration of an application for permission could be required to include ECHR rights (as

in Tuquabo Tekle), the Minister could legitimately decide, in the case of an application made from within the State that asserted such

rights, that she would engage in such consideration, insofar as it arose, subject to imposing the procedural requirement that the

person make that application from without the State.

39. While it has long been recognised that the point not argued is a point not decided (The State (Ryan) v. Lennon [1965] I.R. 70 per

Ó Dálaigh C.J. at p. 120), it must also be acknowledged that a point which has been argued, but not decided, is also a point not

decided. As outlined above, I do not in fact accept that this precise point was in fact argued in Luximon, but if I am wrong about

that, it was clearly not argued to any developed extent. Thus, even if there was some passing reference to the possibility of an

application from outside the State being an answer to the requirement to consider family rights in Luximon, the question of whether

this satisfies the need to take the applicants’ rights into account is clearly not the subject of any decision. As I have emphasised,

however, I think on a reading of the judgment however that it is more likely that the reference to application from outside the State

was in the context of an attempt to distinguish the Tuquabo-Tekle decision rather than of an attempt to advance the argument

which has now been made to me in the present case.

40. In my view, as I discussed in related circumstances in Li (No. 1), it is entirely legitimate for the Minister to require that certain

categories of permission applications should be made from outside the State. At the level of generality, this does not involve an

infringement of the rights of any particular applicant. It does not require an applicant to, as it were, put themselves on the wrong

side of the law and await a proposal to make a deportation order, before they can assert their rights.

41. A system whereby the Minister can require a person to apply for permission outside the State suffers from no such infirmity. If the

individual has valid grounds for the application, it will presumably be accepted, and thus they will be in a position to return to the

State without undue delay.

42. For that reason, I would consider that a decision of the Minister declining to approve an application for extension of permissions

from persons who did not meet the terms of the non-EEA student scheme at that stage to enable them to obtain long term residency

did not, in fact, interfere with the applicant’s rights. Not only were they no worse off as a result of that refusal (because their

permissions were time-limited anyway), but they could also have left the State and made an application for residency from Mauritius.

If such application had validity, the Minister would be required to consider it fairly. If at that point, there was a failure to consider the

applicants’ private and family life, judicial review would be available.

43. There is no breach of fundamental principle involved in allowing a requirement as to the manner in which an application is made to

be determinative of whether its substantive content will be considered. As Fennelly J. remarked in Hanrahan v. Gladney [2014] IESC

80 (7th February, 2014) in the context of the court’s entitlement to consider a complaint: “It is not open to persons generally simply

to present themselves in court with an affidavit”. The court will not consider a complaint about breach of rights unless that complaint

is reduced to writing, embodied in a correct pleading, filed within the appropriate time in the appropriate office of the appropriate

court, accompanied by the statutory stamp duty, made to a judge sitting with a registrar in open court, brought by a person with

legally recognised standing, within limitation periods and being neither premature nor moot, and so on, almost ad infinitum. The court

cannot impose a higher obligation on the Minister for Justice and Equality to unconditionally consider all submissions than it recognises

for itself.

44. To that extent, while under this heading, I would arrive at a somewhat different conclusion to that in Luximon, it is on the basis

of a point that was not decided in Luximon.

Was the Minister obliged to publish policies regarding treatment of those who have completed their seven-year student

visas?

45. It is suggested that there was a failure by the Minister to publish policies dealing with persons in the situation of the applicants,

and reliance is placed on a finding of Barr J. to this effect in Luximon.

46. Even assuming for the sake of argument that there is some ambiguity about the policy relating to non-EEA students, it seems to

me that I can not accept this argument in the light of the decision of the Supreme Court in Hussein v. Minister for Justice, Equality

and Law Reform (Hardiman J. 10th November, 2015), which was delivered after, and strikes a somewhat different note from, both the

decision in Luximon and my own decision in Li (No. 1) on this point.

47. It is clear from Hussein that there are no statutory constraints on the Minister’s power under s. 4(7) of the Immigration Act 2004

beyond the most general considerations of rationality and natural justice as stated at para. 14 of the judgment.

48. It seems to me to follow from the approach in Hussein that the Minister cannot be bound to follow a specific published scheme in

the exercise of what has now been held by the Supreme Court to be a largely untrammelled discretion in this respect (leaving aside

the obvious requirement to comply with the Constitution and the ECHR insofar as they are relevant).

49. Again, the court in Luximon cannot be faulted for failing to foresee a decision of the Supreme Court several months later. In the

light of the decision in Hussein, I would reject the challenge under this heading.

Claim of fettering discretion

50. Ms. Brazil suggests that the Minister unlawfully fettered her discretion by adopting the position that she never had to consider the

ECHR or constitutional rights. It seems to me that this is a mis-description of the process. Taking the view that she is not obliged to

consider those rights does not constitute fettering her discretion. If she had held that she was not entitled to consider those rights,

that would be a different matter, but there is no such finding. All that has happened is that she has asserted an entitlement to decide

the application on the basis of the published 2011 policy document. Such policy documents promote equality before the law, as I said

in Li (No. 1) at para. 60. Her decision to apply the policy document is not unreasonable or unlawful and does not constitute a

fettering of her discretion.

51. In any event it is clear that the decision was not inflexible. The applicant’s submissions were considered. The first named

applicant’s permission was extended. Furthermore the Minister alluded to the possibility of applying for an alternative permission.

Whether there was a breach of fair procedures by the reduction in the duration of the second named applicant’s permission

52. As explained in the affidavit of Barbara McKelvey, the letter issued to the second named applicant was mistaken and was not

intended to have an effect on the valid permission that she had. It is not necessary to grant certiorari or declarations, or to have

recourse to the High Court at all, to correct a mistake of this kind. That could have been done in correspondence, although no pre-

action letter was sent. While there is an error in the letter, I do not consider that it warrants the grant of relief in the circumstances

of this case, especially now that the point has been clarified.

Discretionary factors

53. While judicial review is discretionary, by consent of the parties it was agreed that discretion would not be an issue in terms of

refusing substantive relief in this case. In any event the applicants are not entitled to substantive relief. For those reasons I do not

have to consider the effect of the applicants’ currently unlawful presence in the State, the fact that they have been working in

breach of the criminal law of the State since the expiry of their permissions, and their failure to issue a pre-action letter before

instituting the judicial review proceedings, as reasons to decline to grant relief, if I had otherwise proposed to do so.

Stare decisis

54. As the foregoing discussion makes clear, I am following Luximon on the broad principle that if rights exist (to the appropriate

standard of materiality) and are interfered with (to the appropriate standard of materiality), they must be considered, and on the

point that consideration of rights in the deportation process is not an adequate or lawful alternative to the need for consideration of

such rights in the renewal of permission context, if such a need were to arise. On other aspects it is not so much a question of not

following Luximon as it is of being required to follow decisions of the Court of Appeal and Supreme Court delivered after the judgment

in Luximon, as well as taking a point (as to the possibility of being required to make application from outside the State) which was not

the subject of any developed argument or any decision by the court in Luximon. In my view, the present case does not for those

reasons throw up any acute or unconventional problem relating to stare decisis.

The nature of the social contract with a temporary entrant

55. The applicants introduced evidence from Prof. Brian Lucey to show that the presence of 45,000 non-EEA students in the State

was of major economic benefit to the Irish economy. No doubt this is so. However, a person who comes to the State on a limited

permission as a student or indeed otherwise is subscribing to a social contract with rights and responsibilities on both sides. In the

case of student permission, that person is acquiring the entitlement to pursue education in Ireland and to work for 20 hours a week

during term and 40 hours a week during holidays. Such a person has obviously no entitlement to be in Ireland otherwise than pursuant

to such a permission. The admission of such persons to the State, and the terms of such admission, are about as close to an absolute

discretion as it is possible to get in a system based on the rule of law.

56. One of the responsibilities of a person so admitted, which is an express rather than merely an implied term of the social contract

involved, is that he or she will leave the State on the expiry of their permission. The first and second named applicants are in breach

of this condition. The entire scheme for the admission of students for a maximum of a generous period of seven years is based on the

requirement that they then leave or else obtain some other form of permission to be in the State. Like the position of prospective

adoptive parents referred to, in another context, by Hardiman J. in N. v. H.S.E. [2006] 4 I.R. 374 at para. 322, p. 463, temporary

visitors enter the State in the knowledge that there may have to be a parting of the ways. Voluntary assumption of risk is the

underlying principle in the context of temporary or limited entry into the State (a point which I had previously made in this context in

Leng v. Minister for Justice and Equality [2015] IEHC 681 (6th November, 2015)).

57. Visitors such as those on student permission are inherently here on a transitional basis. It would fundamentally subvert the

scheme and render an orderly immigration system impossible if they could then assert some form of right which would prevent their

removal. House guests staying for the weekend cannot announce that they would like to settle in for a couple of months. Tenants at

the end of their lease period cannot decide that they want to simply assert a freehold title. Temporary visitors in the applicants’

position cannot simply dig in over a period of years and claim to have thereby acquired some form of private or family life which would

impede the non-renewal of their permission. Of course, in a seven-year period, a student will to some extent embed himself or herself

in the host country. But that is a very different form of social experience to that engaged in by a settled migrant. The applicants are

not settled migrants. Their child may have been born in Ireland but his position is derivative. The notion that a fleeting visitor could

convert his or her entitlements into something long-term merely by having a child in this country would subvert the rationality and

workability of the immigration system at a fundamental level.

Order

58. Having regard to the foregoing, I will order that the application be dismissed. I will hear the parties forthwith on any consequential

matters.