Member Login

Chinese national’s use of the visitors’ visa process constituted an abuse of the system

By: James Cross BL

or click here to request site subscription to search and view all judgments

Court of Appeal finds that although the High Court erred in finding that the Minister for Justice did not have the jurisdiction to vary a Chinese national’s visa permission, the Minister was not obliged to assess her asserted family rights when her short-stay visa expired; and the Minister was entitled to find that her use of the visitors’ visa process to circumvent the requisite procedures required to be followed by those seeking a long-stay residence permit and constituted an unacceptable abuse of the visa system.

Asylum and immigration - judicial review – Court of Appeal – Chinese national challenging the decision of the Minister for Justice and Equality refusing her permission to remain - Visitor visa – applied for permission to remain – asserted family rights – whether the Minister failed to conduct an adequate assessment of her family rights – resided in the State with her son who had permission to remain as the father of an Irish born child – added to her son’s health insurance policy - consideration document – argued that the Minister failed to consider the particular facts and circumstances of her application or to strike a fair balance between competing interests between her rights and the community as a whole - decision of the High Court - Minister did not have jurisdiction under s. 4(7) to vary a stamp previously issued – not an argument advanced by either side – certificate for leave to appeal - decision in Luximon - scope of the appeal - reach of the case law of the European Court of Human Rights - Article 8 cannot be considered to impose on a State a general obligation to authorise family reunification on its territory - whether family life was created at a time when the foreign national’s immigration status was such that the persistence of family life within the host state was, from the outset, precarious - entire basis on which she was given permission to enter the jurisdiction was that she would leave after a short period - extent of a State’s obligation to admit relatives of persons residing there will vary according to the particular circumstances and to the general interest - nothing even remotely ‘exceptional’ about her case - entered on a basis fundamentally inconsistent with the acquisition of a long term settled status and she had never been ‘resident’ - no authority within the Strasbourg case law—whether under negative, positive or hybrid obligations on the part of the State—which supports her contention that the Minister was obliged to assess her Article 8 rights at the time when her application under s. 4(7) of the 2004 Act was refused – deferral of the Article 8 assessment - short term, visa-holding visitors are not entitled to claim a right of residence within a host state - Article 8 does not impose upon a State a general obligation to respect immigrants’ choices regarding their preferred country of residence and to authorise family reunification within its territory - required to respect its immigration system and to return to the People’s Republic of China in accordance with the undertaking she furnished - ‘engagement’ of family life - Convention includes no right to establish one’s family life in a particular country - Article 8 may be said to exist between grandparents and grandchildren where there are sufficiently close family ties between them – Minister’s decision was rational and reasonable - no obligation on the Minister to conduct a full assessment of her asserted Article 8 rights when her short-stay visa expired and her request for residence was made - State is entitled to control, regulate and impose conditions upon those who enter its territory and who seek to remain therein - not entitled to use the visitors’ visa system to gain entry into the State and, thereafter, to breach her undertaking and to insist that her family life rights be assessed at a time of her election - Minister does enjoy a jurisdiction under that provision to process an application to vary one type of visa permission to another - an order remitting the matter would not be the appropriate order to make in this case - Minister was entitled to apply s. 4(7) of the 2004 Act in the way that he did - no unlawful failure on his part to consider the applicant’s asserted rights - Minister was not obliged to conduct an assessment of the applicant’s asserted Article 8 rights at that stage - Minister was entitled to find that the applicant’s use of the visitors’ visa process to circumvent the requisite procedures required to be followed by those seeking a long-stay residence permit, constituted an unacceptable abuse of the visa system –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *