Tuesday, June 28, 2011

EU Treaty Rights Update: What happens in cases of separation or divorce?


RIGHTS TO PERMANENT RESIDENCY FOR NON EEA FAMILY MEMBERS

We have been receiving many queries relating to the rights of spouses and partners of EU citizens to permanent residency pursuant to the Free Movement Legislation. The queries  have often involved circumstances where the Union citizen is no longer in employment, or where the couple have seperated or are divorced.

Directive 2004/38 and Irish Regulations of 2006 which implement the Directive into Irish law provide rights of permanent residence in the host Member State for family members of Union citizens.

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of residence in accordance with Directive/Regulations, provided that no grounds for expulsion exist against them. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.

Thus, Union citizens and their family members who have resided in the State for a five year period, but not in conformity with the Directive/Regulations, will not be entitled to premanent residence.

The Regulations specifically deal with the situation of a Union citizen and their family members’ eligibility for permanent residence in circumstances where the Union citizen is no longer working in the State. Regulation 13 directs that Union citizens who have been in employment in a host Member State, may apply for a permanent residence certificate when their employment ceases (whether or not they have acquired five years of residency) if they are of pensionable age/retiring, if they have acquired more than 3 years residence and have pursued the activity at least within the last 12 months, or are ceasing employment because of incapacity to work.

Regarding family members, the Regulations state that the family member of a Union citizen who is entitled to permanent residency as explained above, may also remain permanently in the State on the basis they have been residing with the Union citizen.

Regulation 10 and 14 deal with the right of residence/permanent residence for family members in the event of divorce. The Regulation states that a family member of a Union Citizen may retain a right of residence in the State on an individual and personal basis in the event of the Union Citizen’s divorce, in the following circumstnaces;

(i)      Prior to initiation of divorce, the marriage lasted at least 3 years, including one in the State
(ii)     The non EEA spouse has custody of the Union citizen’s children by court order
(iii)    Particularly difficult circumstances exist such as domestic violence
(iv)    A court order for access to a minor child in the State exists

However, the family member must also satisfy the Minister that he is in employment/self employed/self sufficient.

A family member who meets these criteria is entitled to reside independently in the State after the divorce. Regulation 14 directs that such a family member shall then acquire a right to permanent residence after lawfully residing in the State for a period of five years.

A family member who has resided with the Union citizen for five years and wishes to submit an application for permanent residence must use the Form EU 3. This form is specific to those family members who are in a continuing relationship with the Union citizen.  Both the Union citizen and family member are required to sign the form and provide details of their employment status. A document certifying their right to permanent residence will be issued on a successful application. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years, and these must be issued no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.

Where the family member is no longer residing with the Union citizen, there is no specific procedure to follow for applying for permanent residence. However, as explained above, a family member may still retain the right to permanent residence, for example where divorce proceedings have been initiated as directed by Regulation 14. A request for permanent residence can be submitted to the Minsiter in writing, with sufficient documentary evidence of residence in the State.

Where there is a marital breakdown, which has not resulted in a divorce, an unusual situation occurs whereby the family member cannot rely on the protections of Regulation 14. We argue that it would be contrary to our Constitution’s recognition of the special position of the family in the State to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC. Recital 15 of the Directive provides:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.”

We submit that this principle should be purposively construed such that a third country national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. If it is not construed in this way, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence. This is, in effect, an encouragement to divorce, and is contrary to our Constitution.

We hope that this clarifies some of the more complex aspects of EU Treaty Rights applications. We welcome any questions you may have. 

Karen Berkeley, Brophy Solicitors
28.06.11

Friday, June 24, 2011

Newsflash! Important changes to citizenship applications


 ANNOUNCEMENT OF NEW PROCEDURES FOR CITIZENSHIP APPLICATIONS

The Minister for Justice, Equality and Defence, Alan Shatter, T.D., recently issued a statement setting out details of new changes to be introduced to the citizenship application procedure.

The most significant change for applicants is bound to be the reduction in the application processing time. According to the Minister there will be a “six month turnaround time” on applications for Naturalisation. The current minimum processing time is about two years. There is currently a backlog of 14,000 applications and  it is hoped that it will be cleared over the coming months. This change, if it proceeds, is to be welcomed.

While reviewing the application process the Minister found that many applications forms (Form 8) were being returned to applicants for being incorrectly completed. In order to counteract this the Minister has introduced new application forms to be used for any application for Naturalisation made after the 24th June. Any applications on the old forms after that date will be returned in their entirety.

These new forms have some small but notable changes:

All applicants are now required to put in details of their residence stamps in order to calculate their reckonable residency. There is a problem here for people with refugee status that we are currently trying to clarify with the Irish Naturalisation and Immigration service. There is no reference to the existing requirement of only three years reckonable residency for people with refugee status. It may simply be the case that this was left out of the new draft form.  When we get more information about this we will post it here and on our website. In the meantime people with refugee status should enclose their letter confirming their acceptance of refugee status with their application. It remains our understanding that time spent as an asylum seeker does not count towards reckonable residency.

The other changes to the form and application are that you now have to give details of your employment for the last five years and details of any social welfare payments received within the last three years. We have noted that there has been an unofficial policy in the Department of Justice to refuse applicants Naturalisation for being in receipt of Social Welfare. This was also highlighted in the recent report of the Immigrant Council of Ireland. It would now appear that this policy has been formally adopted. Such a policy clearly discriminates against those who are on Social Welfare through no fault of their own i.e. disability and sickness. We are also concerned that such a general policy discriminates against applicants who satisfy the statutory criteria and have an excellent work history but have had to rely on job seekers allowance for a period. For applicants who are in receipt of unemployment assistance it is essential that you provide evidence of your attempts to obtain work and your registration with FAS. 

It is hoped that the changes to the forms and the updated list of required documentation will decrease the amount of incorrect applications being returned to applicants thereby reducing the turnaround time on applications.

Further changes to the process include the introduction of a new Citizenship ceremony to add a “sense of occasion” rather than simply receiving the Certificate of Naturalisation by post. This addresses concerns of new citizens noted in the report of the Immigrant Council of Ireland and should be welcomed. Also the Minister hopes to employ a number of interns under the Governments Jobs Imitative to assist with the applications and we hope that this will ensure that the proposed new turnaround time is met. 

We will keep you updated with any further changes or developments in coming weeks and months. As always, we welcome your comments or queries.

Brophy Solicitors 
24.06.11

Monday, June 20, 2011

Celebrating World Refugee Day & 60 years of the Refugee Convention


1951 REFUGEE CONVENTION: HAPPY 60TH BIRTHDAY! 

On Monday this week, Professor James Hathaway of the University of Michigan Law School gave an engaging and lively talk ‘Saving international refugee law’, hosted by the Irish Refugee Council and School of Law, Trinity College. The timing of the talk was particularly apt as this year marks the 60th anniversary of the UN Convention relating to the Status of Refugees.

Professor Hathaway set about challenging governments and advocates to move beyond some of the common misconceptions regarding refugee law and protection. He started with misconceptions around the place a so-called ‘real’ refugee seeks protection. The Refugee Convention, he argued, does not say that a ‘genuine’ refugee is obliged to seek asylum in the first place he lands. Decision makers on claims for refugee status often claim this when rejecting applications. Rather family and language ties should be accepted as good cause for claiming refugee status in a particular country and it should be the risks on return that must be at the core of the assessment of the claim. He asked, if we were forced to flee tomorrow, would we not try and go where we had some sort of connection? Professor Hathaway also rounded on the trend in developed countries towards criminalizing refugees who by necessity, break national immigration laws in order to access protection.

Professor Hathaway further tackled the issue of how long States are required to offer protection to refugees. He succinctly argued that there is no provision in the Refugee Convention that entitles refugees to a permanent right to reside in their country of asylum. In fact, Professor Hathaway said that to suggest refugees should have a permanent right to reside under the Refugee Convention is to confuse the issues: rights of residence are conferred under a State’s immigration system. The Refugee Convention requires protection or residence for the duration of risk, he argued.

What Professor Hathaway highlighted which was of particular interest in light of the recent Zambrano decision, are the sometimes overlapping rights that refugees may avail of: a refugee may enjoy the protection of the Refugee Convention, but may also accrue family rights that are protected by domestic provisions such as our Constitution and other law including the European Convention on Human Rights and EU Treaty Rights provisions. It may be under these other provisions that the refugee enjoys rights to permanent or long-term residence but this right does not stem from the Refugee Convention itself.

Professor Hathaway repeatedly critiqued the rhetoric of governments in the developed world, who argue for greater responsibility sharing with developing countries which host approximately 80% of the worlds’ refugees. He observed that this appears only to be rhetoric at present and there is no practical framework or mechanism that formalises such responsibility sharing at present.

Finally, in response to a question from Áine Ní Chonaill of Immigration Control Platform who advocated that Ireland should withdraw from the Refugee Convention, Professor Hathaway stated that remaining a signatory to the Refugee Convention is an ethical, moral decision on behalf of the State but more importantly it is a pragmatic choice. The Refugee Convention offers a framework and a controlling mechanism for processing requests for protection that do not fit within existing immigration systems.

In closing, Professor Hathaway reiterated that he believes the Refugee Convention is a brilliant document that provides protection to some 12 million individuals across the world, more than any other human rights treaty or law. Good reason to celebrate. Happy 60th birthday!

Brophy Solicitors
16.06.11


Friday, June 3, 2011

The Ankara Agreement: How does it affect Turkish workers in Ireland?

THE RIGHTS OF TURKISH WORKERS 

Turkish nationals residing in EU Member States may enjoy specific protections that are distinct from those available to EEA nationals and non-EEA nationals. The Ankara Agreement was signed on 12th September 1963 and an Association Council makes Decisions that ensure that the Agreement is effected. The Agreement, its Additional Protocol and Decisions of the Association Council are part of European Union law. The European Court of Justice has decided that these give specific rights to Turkish nationals and businesses which the EU Member States are required by European Union law to respect.

Of particular interest is Decision 80/1 that sets out protections of Turkish workers. The Decision ensures that Turkish workers enjoy what may be described as preferential treatment to non-EEA nationals when seeking access to employment in a Member State.

The provisions as they relate to the freedom of movement of Turkish workers are set out in Article 6 of the Decision. Under this Article, a Turkish worker who has completed one year’s legal employment in the State has the right to renew his permission to work provided he is working for the same employer and the job is available. After three years of legal employment, lesser restrictions apply to the Turkish national’s access to employment. By the time the Turkish national has completed four years legal employment, they can enjoy free access to employment. There are also specific provisions for family members of Turkish workers included in Decision 80/1.

We have recently been instructed by a Turkish worker and have been carefully considering the proper interpretation of Article 6 as it applies to our client. Our client has been told by the Department of Justice that despite completing three years legal employment, he must obtain a work permit to access employment in the State. As many of you will be aware, there are stringent criteria that must be satisfied in order to secure a work permit. We have therefore argued that these further restrictions should not apply to our client as a Turkish worker who has completed the relevant required period of legal employment. We are arguing that imposition of restrictions on accessing employment including requiring him to obtain a work permit is unlawful and in breach of Decision 80/1.

During the boom years, the Turkish population in Ireland significantly increased as many Turkish workers came over to work, predominantly in construction. We have had first-hand experience of Turkish workers not properly understanding their rights and entitlements and falling undocumented as a result. We are still awaiting a further response from the Department and anticipate that litigation may arise on this little considered area. We hope to bring some clarity to the area in coming months.

Brophy Solicitors
02.06.11