A.K.R. and Minister for Justice and Equality


Olga Shajaku

Judgment of Ms. Justice Bolger
This cases raised issue on the scope and application of the scheme for undocumented migrants, which the Court has ruled to refuse the Applicant’s application.

The applicant was a non-EU national which entered the state legally under a student visa, but remained in state after the visa expired. The applicant was supported by a relative who was an Irish citizen and their only contact with State authorities regarding their status was the application for a Public Service Card, which was successful. The Respondent establish a scheme which sought to give residency permission to undocumented migrants who came to the State as students during a designated time period, which the Applicant applied to believing they qualified. After submitting the requested documentation, the application was refused and  the Applicant appealed this decision which included further documentary evidence.

The Respondent upheld the refusal stating that the Applicant failed to provide sufficient evidence that they resided in the state continuously since their arrival. The Applicant argued that the documentation they submitted was not properly considered and the Respondent’s requirements were arbitrary and irrational, and that the Applicant fit the qualifications for the scheme. The Respondent argued that the purpose of the scheme was to regularise those living openly in the state and engaging with State authorities, rather than the Applicant argument that the scheme applied to those “living in the shadows”, or those that did not engage with the State.

Due to the discretion given to the Respondent by the administrative nature of the scheme, they could decide the relevant and sufficient criteria, which they determined that the Applicant failed to provide. The Court found that the Applicant’s challenge and approach asked the Court to engage with what the Scheme should have been rather than engaging with the legality of the procedures. Due to the administrative nature of the Scheme, it does not engage with constitutional ,convention, or EU treaty rights being violated and therefore the Respondent had leeway to decide the requirements.

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