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Commission to Appear as Amicus Curiae in Case Where Minister Refused to Vary Canadian Woman’s Visa

15 June 2022 - The Irish Human Rights and Equality Commission (‘the Commission’) has been granted liberty by the Supreme Court to exercise its amicus curiae (‘friend of the court’) function in an important case focused on private and family life rights in immigration decision-making. The case of Middelkamp v. Minister for Justice and Equality concerns a Canadian national whose husband, also Canadian, has been studying to be a dentist in Ireland. Ms Middelkamp accompanied her husband to Ireland on a Working Holiday Authorisation visa that issued in August 2018. The Minister extended the length of time Ms. Middelkamp could remain in the State around Covid, however her permission to be in the State could not be renewed. In December 2019, realising that her immigration permission would expire before her husband could complete his dentistry course, Ms Middelkamp applied for a variation of her visa to allow her to remain in the State until her husband’s studies ended. The Minister refused this application. She applied to the High Court to quash the Minister’s refusal on the basis that the Minister had failed to provide reasons for the decision and had failed or refused to consider the private and family life rights of the Applicant as protected by Article 8 of the European Convention on Human Rights (ECHR). In its decision, the High Court found that the reasons given for the decision were inadequate and that the decision itself was flawed for failing to consider the Article 8 ECHR rights of the applicant. In December 2021, the Minister appealed the High Court decision directly to the Supreme Court asserting that this appeal is of ‘systemic importance’ to the immigration system. The Supreme Court subsequently agreed to hear the appeal on the basis that the case involves an issue of general public importance. In its Determination, the Supreme Court identified an issue of general public importance in deciding whether or not there is an obligation on the Minister to consider someone’s private and family life rights when determining certain immigration applications. Specifically, the Court will consider whether a non-EEA applicant, who has been granted a finite permission to reside and work in the State and who has undertaken to leave after that permission expires, is entitled to have their rights to family and private life as protected by Article 8 ECHR considered when seeking a change of immigration status under Section 4(7) of the Immigration Act 2004. The Commission previously appeared as amicus curiae before the Supreme Court in the joined cases of Luximon and Balchand, which culminated in a seminal judgment that lies at the centre of this appeal. Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“This case builds on some of our previous work in the Courts, in which the Commission said that family and private life rights must be taken into account in decision-making around our immigration laws. “The outcome of this case is likely to have a significant impact on non-EU nationals temporarily resident in the State. We look forward to assisting the Court in relation to the human rights issues involved.”
ENDS/ For further information, please contact: Sarah Clarkin, IHREC Communications Manager, 01 852 9641 / 087 468 7760 sarah.clarkin@ihrec.ie Follow us on twitter @_IHREC

Editor's note:

As the Irish Human Rights and Equality Commission is now formally involved in the proceedings, we are precluded from making any further comment as the matter is before the Supreme Court. Where written submissions are made by the Irish Human Rights and Equality Commission to the superior Courts in amicus curiae cases they will be made available on www.ihrec.ie after the case has been heard. The amicus curiae function of the Irish Human Rights and Equality Commission. The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person. Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function: “to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State. The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.