LONG TERM RESIDENCY

Muhammed Saleem v Minister for Justice, Equality and Law Reform, judgement of Mr Justice Cooke, 2^nd June 2011

The Long Term Residency administrative scheme allows persons who have been legally resident in the State for a minimum of five years (i.e. 60 months) on the basis of work permit conditions to apply for a five year residency extension of their permission to remain and thus become exempt from employment permit requirements. In practice, this means a person with 60 months of stamp 1, stamp 4 or stamp 3 is eligible to apply and on a successful application they will be granted a five year stamp 4 permission to remain.

A common difficulty that arises is the applicant fulfils the 60 month reckonable residence requirement at the date of application, but during the course of the processing of the application (which has averaged at 18 months over the last number of years) the applicant becomes undocumented. The Ministerial guidelines on the INIS website are very clear regarding the requirement to have the requisite periods of residency at the date of application, but are silent on a similar requirement during the processing of the application. Lest there be any doubt that the requirement to remain fully documented continues at all times, the case of Muhammed Saleem v Minister for Justice, Equality and Law Reform, (unpublished judgement of Mr Justice Cooke, dated 2^nd June 2011), certainly confirms this point.

Mr Saleem had acquired 60 months of stamp 1 permission on foot of work permits at the date of his application for Long Term Residency in July 2008. In October 2009, Mr Saleem became undocumented, having been previously made redundant. Judicial Review proceedings were issued in October 2009 in respect of the Minister’s delay in determining the application. Mr Saleem was notified of the refusal of his application in May 2010, the ground for refusal being that his permission to remain was not up to date.

At substantive hearing, it was argued on Mr Saleem’s behalf that had not Minister not delayed in determining the application, Mr Salaeem would have been documented and thus within the Minister’s requirements. Mr Justice Cooke held against the Applicant. In doing so, Mr Justice Cooke emphasized that a migrant worker does not have a “right” to a residence permission (as issued pursuant to Section 4 of the Immigration Act 2004), and the grant of such permission is fully within the Minister’s discretion. He stated, “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 he terms and conditions on that scheme”.

Mr Justice Cooke confirmed that it was always a condition of the scheme that an applicant be in gainful employment and legally resident in the State both at the time of the application, and throughout the period when it was bring processed. Regarding the delay submissions, Mr Justice Cooke indicated that it would be impossible to find that the Minister’s delay was so unreasonable to amount to a breach of duty, taking into consideration the evidence at to the volume of such applications received and processed by the Department.

Brophy Solicitors

29.7.11