Con Pendred

Judicial principle creating the chance for temporary reprieve for immigrants threatened with removal from the State is a matter of exceptional public importance regarding the current legislation, which is linked to the most visible repeated controversy in immigration law especially with regard to foreign students.

There needs to be established criteria that judges should consider in pre-removal circumstances, in deciding whether to grant stayed action to an individual foreign national. It lets a foreign national know that they are a ‘low priority’ for removal, and alleviates the stress and strain on both the individual and the immigration service, but does not erase their ‘removability’, and provides no lawful immigration status during that period.

Stayed action needs to be prescribed as a three-month period in which a solicitor may prepare a case to repair and relieve the foreign national of the threat of removal, and restore them to status of some kind. It is a revocable promise not to remove for a certain period of time for that purpose.

Prosecutorial discretion is not appropriate to remove all individuals who are in the State without permission. Special priorities can be catered for with legislation. Students are a major economic benefit to the Ireland’s economy. The executive needs to prioritise its removal efforts and allow District Court judges issue a preliminary injunction against its violations of foreign students’ civil rights.

Considerations of fairness and proportionality from the jurisdiction of immigration courts is required at District Court level, and there is a requirement to put on the pressure to inject equity into the summary District Court judicial system in immigration law, where judges will decide whether to begin removal proceedings or otherwise, and consider factors such as the nature of the offence, the immigration history of the immigrant, the length of residence and perhaps prospects of rehabilitation.

This equity is missing when an entire population of foreign nationals is thrown into jeopardy every day by executive action that can only be resolved by High Court proceedings, which are prohibitively expensive. Even if there is an encounter with the criminal justice system which occurred many years ago and/or was a misdemeanour, a student who has made a colossal investment in study in Ireland may be subject to executive police action by An Garda Síochána at the behest of the Minister for Justice and Equality. 

Affordability of defence is critical. Equitable relief could be obtained from an immigration judge typically resulting in final, stable legal status in the Ireland; equitable relief obtained from an immigration prosecutor is unlikely, and currently may result only in time out by recourse to the High Court. 

The remedy sought and required is that which results in preservation of the status quo and actual liberty, and freedom to take legal advice and remedy any default in compliance under the purview of the court’s jurisdiction.

The ability of immigration judges to weigh equitable considerations in deciding whether an individual is essential, and should be employed immediately. There are no other courts established for equitable considerations to play this important role. 

A parallel law reform would be a statutory legalisation initiative that would allow individuals to apply to become legal in status based on certain equities. This would shrink the pool of those eligible to be removed, allowing the executive to better focus on who of the remaining population should be removed due to serious threats to the common good.

As well as properly realigning the equitable judicial function at the immigration court at District Court level, such action would restore fairness to the system.

It is important to participate and explore the moral and economic implications of immigration practices. They inform identity; they also perpetuate structural inequities. With care and critical thinking, related to building a fair, equitable and vital contemporary society, foreign students who maintain an important source of investment in Ireland ought to be treasured and treated with respect, especially when matters have not worked out according to plan. 

An effective remedy is all that is called for. Our administration is failing our foreign student industry by overzealous commercialism and harsh legalism that requires a large dose of equity as a cure for both the doctor and patient alike.

Con Pendred is a solicitor with AC Pendred & Co Solicitors in Dublin.

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