Minister gets appeal over Canadian woman’s successful visa challenge

The Minister for Justice and Equality has been granted an appeal before the Supreme Court over a Canadian woman’s successful challenge to a refusal to extend her two-year visa.

In July last year, Jaimee Middelkamp won a High Court challenge to the Minister’s visa extension refusal.

The High Court found the reasons given for the decision were inadequate and the decision itself was flawed for failing to consider her European Convention rights to a private and family life.

Ms Middelkamp works as a legal secretary and supports her Canadian husband, who is studying to become a dentist at University College Cork under a student visa.

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She came here under a two-year visa in 2018 along with her husband, who started his four-year dentistry course.

Due to the pandemic, her visa was extended until next September as part of a general extension.

She applied to have it renewed in December 2020 and was refused in January 2021 on grounds that it was “in the interest of public policy and the common good in maintaining the integrity of the immigration system”.

After she won her legal challenge, the Minister asked the High Court to certify for an appeal but this was refused.

However, the Minister then applied directly to the Supreme Court to be allowed to appeal on grounds that the case involves an issue of general public importance.

This issue, the Minister argued, was whether a non-EU national, who has been granted a finite permission to temporarily reside and work in the State and undertook to leave after the permission expires, is entitled nonetheless to an assessment of their European Convention rights under relevant immigration legislation.

Ms Middelkamp contended her case was stronger than previous case law on the issue, in that it involves spousal separation.

She also said her husband was due to finish his studies this summer when, it is proposed, they would leave the State.

In those circumstances it was suggested that the case may be pointless. If the Supreme Court grants an appeal, she has asked for a priority hearing.

The Supreme Court said the case involved an issue of general public importance. It was also satisfied it came under the exceptional circumstances provision of the Constitution (article 34.5.4) justifying an appeal. The appeal will be heard later.

The appeal was also granted subject to an undertaking from the Minister that if the appeal is successful, costs would not be sought against Ms Middelkamp and no application would be made to reverse the costs award to her made in the High Court.