Zambrano Update

POSITIVE RESULT IN ZAMBRANO TYPE CASES

We were delighted to receive positive news from the Department of Justice, Equality and Defence in the last week in respect of some of the recent Zambrano applications we have submitted. The approval letters have indicated that the Minister is granting permission to remain of a three year duration.

However, in one such case,  our client was granted permission to remain in the State and work for five years.   This client was the subject of a deportation order affecting her removal to South Africa along with her nine year old daughter who is also a South African national.  Our client was notified that a deportation order had issued against both she and her non-Irish child in August 2010.  When she initially joined her husband in the State she was granted permission to remain for a short period and was advised by her local immigration officer to apply to the Minister for Justice to extend such permission to reside with her husband and children in the State.  She received no response to her residency application and later instructed a solicitor to apply for leave to remain.  This application was ultimately refused.  She had however, not been served with the signed order that the Minster intended to deport her with her South African child.  Throughout her time in the State she avidly contacted her local TD who raised her case during a parliamentary debate as she and her family had no idea about what was happening with their case.   After discovering there had been a deportation order made, she continued as required, to attend the Garda National Immigration Bureau who had also seized her passport.  She was certain that she and her daughter would be removed from the State at any stage and such uncertainty caused her family great stress and anxiety.  She is the main carer for her Irish son and her daughter while her husband worked to support the family.  

We welcome the Department’s decision to fully implement the ECJ’s decision in ‘Zambrano’ in granting Applicant’s the right to work and reside in the State on the basis of her citizen child. 

The prospect that families may be forced to separate or leave the State is a very stark choice for many parents of Irish citizen children, but prior to the Zambrano decision, this was an unfortunate reality. We are pleased to be having successes in this area and are working on a number of cases that rely on the Zambrano principles beyond the narrow application to parents of minor Irish citizen children, which we will keep you updated on.

Sarah McCoy, Brophy Solicitors

27.05.11

The Long Hard Road to Citizenship

LAUNCH OF ICI REPORT ON NATURALISATION 

On Tuesday last, we attended the launch of an important report by the Immigrant Council of Ireland (ICI): ‘Living in Limbo: Migrants’ Experiences of Applying for Naturalisation in Ireland’. The report was prepared in collaboration with NASC, the Irish Immigrant Support Centre based in Cork. 

The report compiles quantitative and qualitative research including interviews and surveys of those applying for citizenship by way of naturalisation. It also includes a comparative study with legislative and administrative procedures in other countries, including the UK and the US. 

The speakers at the launch highlighted some of the key findings of the report. It was noted that, unlike in other European countries, the only true secure status in Ireland that provides for clear rights and obligations is citizenship. Most of those interviewed for the report saw obtaining citizenship as something to aspire to, that would enable them to participate fully in Irish society and to ultimately ‘belong’. 

In order to become an Irish citizen by way of naturalisation, an applicant must satisfy the statutory eligibility criteria: be over 18 years, be of ‘good character’, have resided lawfully in Ireland for at least five of the previous nine years, including one year continuously immediately prior to the application. What the report found that there were serious shortcomings in how these criteria were applied. 

One area of complaint were the in some cases extraordinary delays experienced in having their applications determined. Similar to our own experiences at Brophy Solicitors, some applicants reported excessive and unreasonable delays of over three years. For one lady Sarah who was interviewed for the ICI report no decision has been forthcoming after four years since her initial application. 

Another area the report highlighted was the lack of clarity on what constitutes ‘good character’. Sister Stanislaus Kennedy, founder of ICI, spoke eloquently of the very harsh and subjective application of this criteria. 

The findings of the report reflect our own experience at Brophy Solicitors. The ‘good character’ criteria is often very stringently, arguably unfairly, applied.  One applicant who was interviewed for the report was initially refused on the basis that he had been questioned in relation to an incident and released without charge – yet it was deemed he had come to the ‘adverse attention’ of An Garda Siochana. 

The report also noted refusals on the basis that an applicant had availed of their entitlement to receive social welfare even for a short period of time. We have been assisting a client recently with challenging a similar refusal. Our client fell ill, lost his job, and applied for social welfare. We have requested an urgent review of the refusal, arguing that the applicant claimed by necessity and that this has no bearing on his good character and he fulfils the statutory criteria. 

At the launch of the report, three migrants presented their own experiences and spoke movingly about the challenges they had faced in applying for citizenship and navigating the Irish immigration system. Each were anxious to become part of Irish society, to continue to contribute but felt disillusioned by the arbitrary application of the eligibility criteria for naturalisation, and the extreme delays in processing the applications. 

We welcome the report and congratulate Catherine Cosgrave and ICI on presenting a clear concise appraisal of the problems that the government need to now address to ensure a fair and transparent road to citizenship in Ireland. We whole-heartedly support the recommendations of the report. 

Brophy Solicitors  

24.05.11

"The McCarthy Case"

JUDGMENT IN CASE C-434/09 / SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT

Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK  Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.  

The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:

“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”

Thus, in the absence of national measures that have the effect of depriving Union Citizens of the genuine enjoyment of the substance of their rights arising by virtue of her status as a Union citizen, such measures have no connection with European Union law and are covered exclusively by national law. 

It is easily interpreted from the Court of Justice’s reasoning that if the UK had taken measures which would infringe upon Ms McCarthy’s genuine enjoyment of her rights as a Union Citizen, this would bring the matter within the domain of European Law. For example, should the UK authorities actually have taken the step to refuse Ms McCarthy’s husband a right of residency under National provisions, without good reason, her rights as a Union citizen would then be infringed and she would have an action in EU Law. Prior to such action by the UK authorities, it seems the Court of Justice will give the UK the benefit of the presumption that they will apply a domestic standard acceptable in European Law terms. Thus, there appears within the judgment a warning to Member States to maintain national measures affecting the citizens of their State such that they do not infringe upon the substance of Union Citizen’s rights.  

It must be accepted that fundamental to these rights of Union Citizens is an entitlement to reside in the Member State of one’s nationality with one’s immediate family members, and additionally, by way of comparison to Directive 2004/38, such dependant family members of one’s spouse/partner. This effectively confirms the Reverse Discrimination argument that we have argued in many of our cases before the High Court – that an Irish citizen cannot properly be treated less favourably under national law than a European Union citizen from another Member State residing in Ireland who can benefit from European Law.

We look forward to any comments or questions you might have on this new decision.

Karen Berkeley, Brophy Solicitors

News flash!

JUDGMENT OF THE ECJ: SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT, CASE C-434/09

A full update on this important case will follow. You can read a summary of this important judgment here. The full judgment is available here. This case involved a preliminary reference from the UK Supreme Court on the following issues: 

1.      Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?

2.      Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’

The Court did not find in favour of the Applicant and in short, concluded as follows:

–        Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

–        Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

While we are still digesting this decision, it obviously raises a number of questions following the decision in Zambrano that also addressed the rights of Union citizens. There appear to be a number of contradictions between the two decisions and you may be interested to look at paragraphs 49 to 50, where Zambrano is specifically considered. 

A further fuller update will follow very shortly! 

Rebecca Keatinge, Brophy Solicitors