Wai Ling Chan was about to talk about how it feels to live a life fraught with uncertainty when she broke down in tears.
“I’m sorry, I’m sorry,” she said, wiping her red eyes.
Chan has waited and waited for a year and a half to see if the Department of Justice is to deport her or let her stay with her family in Dublin.
There are more than 2,480 people with outstanding intent-to-deport orders against them at the moment, according to the Department of Justice figures.
Of those, roughly 47o people have made requests to the minister under the law to have those orders revoked. Chan is among those.
In the meantime, they live undocumented, unable to work and in a deeply uncertain present.
“I want to get my status and find a job to survive,” said Chan on Monday 10 July, sitting at a table in the corner of a café in Smithfield.
A spokesperson for the Department of Justice said it doesn’t record how long decisions take for cases like Chan’s.
“As all applications are processed on their individual merits and the timeline can vary depending on the complexity of the cases, and the engagement of the applicants,” they said.
Processing times for the Repatriation Unit, as with its offices, were impacted by the pandemic, the spokesperson said.
“Deportations were in the main suspended during COVID-19 for humanitarian reasons,” they said.
Over the limits
Chan has been undocumented since 2019. By then, she had lived for eight years on student stamps.
While studying, she worked part-time for the translation company Word Perfect and later at a Chinese takeaway in the city, she said.
In the meantime, she searched for jobs, hoping to find one that would sponsor a work permit. But she didn’t get any offers, says Chan.
Friends scored jobs with big tech companies willing to sponsor permits, says Chan, who has a business degree. Like Facebook or Microsoft.
“My friends, they have status here,” said Chan with a faint smile.
In the summer of 2019, Chan tried to enrol in another course so she could renew her residence permit and improve her chances of finding a good job, she says. But she realised it wasn’t possible.
There is a cap on how long people from outside the European Economic Area (EEA) can live here as students. It’s usually not more than seven years.
Chan shakes her head. “I didn’t know, I just feel so stupid,” she says.
Those with too long on student stamps also lose the chance to move onto a graduate stamp 1G, which allows non-EEA graduates of Irish universities to search for jobs and work without work permits for up to two years.
Chan has her sister, nephews and cousins in Dublin. She wants to stay close to them, she says.
Across the table at the cafe sits Wendy Lyon, Chan’s lawyer. Said Lyon: “This is where I came in.”
Lyon says Chan’s case is complicated by bad luck and the volatility of rulings in immigration cases.
After Chan hired her, she filed a judicial review on her behalf. She also made submissions against her deportation order to the Repatriation Unit.
At the core of Chan’s High Court case was the argument that deportation violates her rights enshrined in Article 8 of the European Convention on Human Rights (ECHR).
In particular, the right to “respect for private and family life, home and correspondence”.
“Since moving to Ireland in 2012, the applicant has at all times lived either with, or in close proximity to her sister and nephew, both of whom are Irish citizens,” says Chan’s application to the High Court.
But when it comes to immigrants on precarious statuses, getting the courts to consider those rights when assessing cases can be a battle.
Courts apply a five-stage test to determine if somebody’s right to private and family life is important enough to consider.
But when somebody’s immigration status is precarious, the Irish courts usually wouldn’t move through all those stages, Lyon says.
They stop at stage two, deciding that if someone has a shaky status, they can’t assert any rights under Article 8, and the interests of the state and the integrity of the immigration system are more important, she says.
In doing so, they skip three fundamental questions, says Lyon.
Things like: if deportation violates someone’s rights to private and family life, is that breach legal? If it is, is it necessary for democracy, or national security or public safety?
Says Lyon: “Because they basically said because you never had a right to think you were going to be able to stay here, you couldn’t have a private life, right?”
Lyon and her team tried to argue against that for Chan. But it didn’t stick.
Fearful that her client would rack up legal costs, she didn’t appeal the High Court’s decision, she says.
But another case, making the same legal argument, challenged the initial ruling and moved forward until it came before the Supreme Court.
M.K. in M.K (Albania) v Minister for Justice travelled here as a child to seek asylum, without his parents, in September 2016.
Tusla applied for asylum on his behalf a year later, in the summer of 2017. The International Protection Office refused his asylum claim, and the appeal tribunal upheld that decision.
While in the asylum process, he went to secondary school in Bray for two years, made friends and later got a job at the Beachcomber Food Bar in Malahide.
“It was submitted that he was a hard worker and wanted to someday open up his own business,” says the High Court ruling on his case.
“He was very popular in his community and believed that he made a positive contribution to the State and society,” it says.
Both the High Court and the Court of Appeal thought his status as a rejected asylum-seeker from Albania meant that it wasn’t necessary to fully consider his rights to private and family life.
In November 2022, the Supreme Court overturned those decisions.
In her ruling, Ms Justice Marie Baker said to start by asking whether the potential impact of considering someone’s right to private and family life outweighs the interest of the state, is to conclude that someone’s Article 8 rights aren’t engaged at all when an applicant does have those rights.
“The decision maker must ask first, whether the rights exist, and then what the elements of the rights are, and how weighty they are,” she said.
It was the right decision, Lyon says. But for Chan, it has come too late.
She didn’t qualify for the amnesty scheme for undocumented migrants either, because she hadn’t amassed three consecutive years of living without immigration papers by its deadline, Lyon said.
A spokesperson for the Department of Justice said that it does consider legal precedents when processing cases like Chan’s. “Including the Supreme Court’s decision in MK (Albania) v Minister for Justice & Equality.”
In search of lost time
Lyon says that every time she follows up on Chan’s case, she gets the same response.
She pulls it up on her laptop. There are too many cases being processed right now, it says.
Chan says she spends her days at home worrying.
That’s not who she used to be. “Normally, I work hard. Now I spend my time at home,” she said.
She has looked for work, but there are no takers. Even if there were, applying for a work permit as a paperless migrant can be a long shot.
A section in the Work Permit Act says that the Minister for Employment can turn down an application based on someone’s undocumented status, Lyon says.
“In practice, that has been interpreted as you can’t apply for a work permit if you’re undocumented. But that’s not true,” she says.
Three High Court cases have featured it. “And in all of the three High Court cases, the Judge said, no, that’s not a hard and fast rule, you have to look at individual circumstances of the case,” Lyon said.
But it’s not easy to find an employer ready to sponsor a paperless migrant, she says. “I can’t see it, you know?”
Chan just sees lost time stretching out. The years lost to studying with no prospects, to living undocumented in limbo. The business degree she can’t use and the daunting possibility of having to start again from scratch.
“I want my new life, but I’m not young anymore, but I want to start another life anyway,” she said, crying.