Finian McGrath (Dublin Bay North, Independent) | Oireachtas source

I thank Senator Bacik for raising this important matter. While it is the responsibility of non-EEA nationals to keep their immigration permission current at all times, the Tánaiste recognises that some former students now find themselves undocumented. As the case referred to by the Senator is being appealed to the Supreme Court, the Tánaiste is somewhat limited in what she can say at this point.

The court ruling came about as a result of non-EEA nationals who previously held student immigration permissions having their applications for new permissions, or variation of the original permissions, refused. The Tánaiste understands proceedings have issued in approximately 70 similar cases. Part of the issue with regard to this complex matter relates to whether existing legislation is sufficiently clear on whether an application under section 4 of the Immigration Act 2004 needs to be made by a person seeking to vary an existing permission, which is current, or whether such an application can be made by a person who is out of permission.

The Court of Appeal judgment raises the issue of whether Article 8 rights under the European Convention on Human Rights should be considered as part of the application process. The State's clear position, which is in keeping with the jurisprudence of the Irish courts and the European Court of Human Rights, is that consideration of Article 8 rights is only required when a person applies to enter the State or when he or she is being considered for removal from the State as part of the deportation process.Such a consideration would take place under a different statute, section 3 of the Immigration Act 1999 and as part of a fundamentally different process. Prior to 1 January 2011, student permissions, it could be argued, were effectively open-ended. A new regime for full-time non-EEA students commenced on 1 January 2011, which capped at seven years the total time student permission would be granted, subject to certain conditions. The Tánaiste appreciates the Senator’s concerns and input on this matter and further consideration is being given by her officials to the wider impacts of the case. As was outlined at the outset, the judgment itself is currently under appeal to the Supreme Court.