LONG TERM RESIDENCY

Muhammed Saleem v Minister for Justice, Equality and Law Reform, judgement of Mr Justice Cooke, 2^nd June 2011

The Long Term Residency administrative scheme allows persons who have been legally resident in the State for a minimum of five years (i.e. 60 months) on the basis of work permit conditions to apply for a five year residency extension of their permission to remain and thus become exempt from employment permit requirements. In practice, this means a person with 60 months of stamp 1, stamp 4 or stamp 3 is eligible to apply and on a successful application they will be granted a five year stamp 4 permission to remain.

A common difficulty that arises is the applicant fulfils the 60 month reckonable residence requirement at the date of application, but during the course of the processing of the application (which has averaged at 18 months over the last number of years) the applicant becomes undocumented. The Ministerial guidelines on the INIS website are very clear regarding the requirement to have the requisite periods of residency at the date of application, but are silent on a similar requirement during the processing of the application. Lest there be any doubt that the requirement to remain fully documented continues at all times, the case of Muhammed Saleem v Minister for Justice, Equality and Law Reform, (unpublished judgement of Mr Justice Cooke, dated 2^nd June 2011), certainly confirms this point.

Mr Saleem had acquired 60 months of stamp 1 permission on foot of work permits at the date of his application for Long Term Residency in July 2008. In October 2009, Mr Saleem became undocumented, having been previously made redundant. Judicial Review proceedings were issued in October 2009 in respect of the Minister’s delay in determining the application. Mr Saleem was notified of the refusal of his application in May 2010, the ground for refusal being that his permission to remain was not up to date.

At substantive hearing, it was argued on Mr Saleem’s behalf that had not Minister not delayed in determining the application, Mr Salaeem would have been documented and thus within the Minister’s requirements. Mr Justice Cooke held against the Applicant. In doing so, Mr Justice Cooke emphasized that a migrant worker does not have a “right” to a residence permission (as issued pursuant to Section 4 of the Immigration Act 2004), and the grant of such permission is fully within the Minister’s discretion. He stated, “the effect of the publication of a particular scheme such as the long term residency scheme, is at most, to give rise to an expectation on the part of a migrant worker that an application made on foot of the scheme will be considered and either granted or rejected in accordance with he terms and conditions on that scheme”.

Mr Justice Cooke confirmed that it was always a condition of the scheme that an applicant be in gainful employment and legally resident in the State both at the time of the application, and throughout the period when it was bring processed. Regarding the delay submissions, Mr Justice Cooke indicated that it would be impossible to find that the Minister’s delay was so unreasonable to amount to a breach of duty, taking into consideration the evidence at to the volume of such applications received and processed by the Department.

Brophy Solicitors

29.7.11

ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11

ARTICLE 8 AND THE RIGHT TO COMPANY OF FINANCIALLY DEPENDANT NON EU NATIONAL PARENT

UK Court of Appeal Judgement, AAO and The Entry Clearance Officer, 22^nd July 2011

An interesting judgement was delivered by the Court of Appeal (England and Wales) last week in the case of AAO and The Entry Clearance Officer. The Court assessed the relationship of adult British citizen and their financially dependant non EU parent under Article 8 of the European Convention of Human Rights. We are very interested in the Court’s findings as we are working on number of similarly factual cases for our clients.

The case involved an application by 69 year old Somalia national who had been living in Kenya to enter the UK to join her British national daughter. The Applicant was financially dependant on her daughter, who sent her monthly payments of approximately $100. She was also in poor health, and dependant on neighbours for daily care. The British national daughter had seven children and was herself dependant on State welfare.  The Clearance Officer refused her application for indefinite leave to join her daughter as a relative and financial dependant. The Asylum and Immigration Tribunal upheld this decision, and the Applicant appealed on the basis that this was a breach of her Article 8 rights. The argument was made on her behalf that financial dependency could constitute family life within the meaning of Article 8.

The Court of Appeal (England and Wales) found that family life within the meaning of Article 8 would not normally exist between parents and adult children in the absence of further elements of dependency which go beyond normal emotional ties. Lord Justice Rix states as follows;

“although the money sent to her mother by the daughter raises an element of dependency, it is not one which in my judgment takes the matter very far. The provision of such money can be as much an insulation against family life as evidence of it. In any event, there is nothing to prevent the daughter continuing with the provision of money to her mother in Kenya: therefore to this extent there is no interference with family life”

We believe that financial dependency alone may not meet the Article 8 threshold, but it is a very relevant and indicative factor in the assessment of family life. The financial factor is often coupled with many other factors which would bring a case within this threshold, for example emotional dependency, frequency of contact evidencing a close relationship, obstacles prevent family life to be maintained outside the State.  We have a similar case coming up for hearing before the High Court next October, which we believe includes all these factors, and which we believe falls within the ambit of Article 8 and Article 41 of the Irish Constitution. We will keep you updates as to the outcome of this case.

IMMIGRATION: RIGHTS OF INDIVIDUALS V OBLIGATION OF STATE AUTHORITIES

UK BORDER AGENCY OVERHALL OF IMMIGRATION SYSTEM

In making submissions to the Minster for Justice on behalf of our clients in respect of visa and residency applications, we frequently must address the delicate balance between the rights of our individual clients against the legitimate obligations of the State. A common example would be the rights of our clients to family unity verses the State’s right and obligation to act against abuse of the Immigration laws and to generally protect the public finances. It is of course the role of the State authorities to protect against abuse of law both in the civil and criminal sphere, and in immigration terms, this  would mean to prohibit fraudulent marriages of convenience, or abuses of the State’s welfare system. The correct balance to be reached can be difficult and unclear. Problematically in Ireland, the law is often very unclear as we have very little relevant statutory instruments, or departmental guidance to rely on. Thus, determinations often result in High Court litigation in order to decipher where exactly the correct balance lies in respect of individual cases. This is a huge financial burden on the State.

Often, our government looks to the UK position for guidance. We note that the UK Border Agency is currently a "major overhall of the Immigration system". It was announced on the 13th July last that the Agency is commencing a consultation process with the aims of  “stopping abuse, promoting integration and reducing burdens on the taxpayer.”

Some of the proposals of this consultation group are as follows;

• defining more clearly what constitutes a genuine and continuing marriage, to help identify sham and forced marriages;
• introducing a new minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported as a basis for integration
• extending the probationary period before partners can apply for settlement in the UK from 2 years to 5 years,
• exploring the case for making 'sham' a lawful impediment to marriage in England and Wales, and for giving the authorities the power to delay a marriage where sham is suspected;
• working closely with local authorities to ensure that vulnerable people are not forced into marriage; and
• reviewing the full right of appeal for family visitor visas, and inviting views on whether there are circumstances (beyond race discrimination and human rights grounds) in which an appeal right should be retained.

We wonder will our own government be following in a similar vein in respect of some of these proposals in the long pending Immigration and Residence Bill?

Further information on these proposals can be found at the UK Border Agency website.

Brophy Solicitors 

ZAMBRANO UPDATE

ZAMBRANO HIGH COURT LIST

The cases in the High Court “Zambrano List” were listed yesterday before Mr Justice Cooke. Counsel for the State indicated that letters had been sent by the Minister to each applicant requesting further information/documents to be submitted in order to fully assess applicants for residency pursuant to the Zambrano case. Mr. Justice Cooke was satisfied with this progression, and the cases were therefore re listed for the 10^th October 2011 in the new term.

Our concerns relate to the applicants who have already left or been deported from the State, as they remain separated from their families pending the Minister’s determinations. The difficulties for these parents is that Zambrano assessments are based on the parents involvement in the Irish child’s daily life, which is very difficult to prove when a parent is resident out side the State. These cases are therefore somewhat more complicated. It seems that the applicants who have remained residing with their families in the State and have clear criminal records are now receiving determinations. However, it seems unlikely that determinations on cases where the applicant is outside the State will be reached as soon. We do not think it fair that the applicants who have been unfairly removed from the State should continue to be prejudiced in this way. This is particularly  so given that the the Minister has been on notice of Zambrano since March 2011, and made a public announcement that all applications would be dealt with expeditously. We will continue to request immediate determinations for all our clients. 

Brophy Solicitors

26.7.11

ZAMBRANO/CHEN

HIGH COURT REFUSAL TO FIND A RIGHT TO TEMPORARY PERMISSION TO RESIDE FOR ZAMBRANO/CHEN APPLICANT

It might be of interest to know that this morning we made an application to the High Court for a temporary permission to reside/work pending determination of an Chen / Zambrano application for a third country national father of a Union citizen child, the family unit being permanently resident in Ireland. We argued that such applicants should be treated analogously to applicants for a residence card under Directive 2004/38 on the basis that all rights were deriving from the Treaty, and not the secondary legislation itself. We argued that just as an applicant pursuant to the Directive/Regulations is protected with temporary permission to reside and work, so too should our client be protected in this way. Particularly given that the family was fully dependant on his weekly earnings.

The judge refused our application, and would not entertain the argument that the application was analogous to those made under the Directive. He found that the court should not intervene when an application was before the Minister as this would effectively preempt the Minister’s decision.

It is also of interest to note that the Judge indicated that Zambrano may not be relevant to the case as the child was not a citizen of this State, and did not risk being removed from the territory of the European Union.  To us, this seems to create a clear discrimination between Irish children and other Union citizen children. The former are now distinctly advantaged as their non EU parents can obtain the right to reside and work within Ireland following Zambrano, while the parents of children of a European Union nationality other than Ireland would be forced to leave Ireland and assert these rights in the country of the child’s nationality. This would seem contrary to the fundamental concept of free movement within the EU.

It seems likely that these questions will have to be referred to the European Court of Justice for clarification in the coming months. 

Brophy Solicitors

25.7.11

Short Stay Visa Waiver Programme - Who Is Covered?

NEW SHORT STAY VISA WAIVER PROGRAMME

Ireland’s first ever short-stay visa waiver programme was announced on 30th June. It relaxes restrictions on who must apply for short stay visas in a bid to attract tourists visiting the UK to extend their trip to come to Ireland. The current programme is a pilot that will run until October 2012, taking in the Olympics in London in 2012.

In response to some queries we have had in on how the programme applies, here is a brief summary. 

Firstly, note that the waiver only applies to a specific list of nationalities, many of which are currently ‘visa’ countries. The sixteen countries included are: India, Kazakhstan, Peoples Republic of China, Uzbekistan, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates, Belarus, Montenegro, Russian Federation, Serbia, Turkey and Ukraine.

Secondly, potential applicants should note that the waiver only applies when the applicant already has lawful permission to enter the UK as a tourist or business person. They will be permitted to enter the State for 3 months or until their UK visa runs out, whichever is the shorter.  

It is also worth noting that the initiative allows long-term residents of the UK who are nationals of the listed countries to have the cost of an Irish visa waived.

We welcome this pragmatic initiative. Further details of the new initiative are available here 


Brophy Solicitors 
25.07.11

SHAM MARRIAGES

WRONGFUL ARREST OVER SUSPECTED 'SHAM MARRIAGE'

The BBC reported that Northern Ireland police admit that sometimes, they get things wrong following the arrest of Ms. Yanan Sun who was just about to marry her Northern Irish fiancée in Derry.  Ms. Yanan Sun who is pregnant is understandably distraught.  Her fiancée has commented that an apology is not enough. 

This year we issued proceedings in a similar case and have first hand experience of the human side of these police blunders which cause great stress, embarrassment and anger for a couple about to wed.  A wrongful arrest for any person is a frightening and humiliating occurrence, let alone an arrest on a day that is supposed to be one of the happiest days of that person's life.  It is not acceptable for State authorities to act in this manner. 

Brophy Solicitors 
22.07.11

EU TREATY RIGHTS AND SHAM MARRAIGES

 MINISTER SHATTER'S RECENT STATEMENT ON SHAM MARRAIGES

The INIS press release of the 9^th June 2011, entitled “Sham marriages leading to abuse of free movement rights ”  summarizes Minister Shatter’s recent speech to the Justice and Home Affairs Council in Luxemburg.  The Minister informed the Council of the “highly irregular” patterns of marriage. He indicated that his official were working on drafting amendments to the Immigration and Residence Bill to deal with the problem of “marriage of convenience”, and that this Bill would be re introduced shortly.

We very much welcome the fact that that the Minister proposes to take action against the fraudulent industry surrounding the EU Treaty Rights process.  We would agree with his position that the problem is significant and requires intervention by the State in the form of appropriate legislation. The current position is completely unsatisfactory in that it is not currently an offence to enter a fraudulent marriage for immigration purposes. This leaves the field wide open for abuse of the process, and frankly it is of no surprise that a fraudulent industry has flourished.

Since the case of Izmailovich v the Commissioner of an Garda Siochana, delivered on the 31^st January 2011, the Government is fully on notice of this legal lacuna of the “marriage of convenience”. Mr Justice Hogan, who presided over the Izmailovich case, indicated in his judgement that he had no option but to find that the Gardai are not empowered to prevent the solemnisation of marriage on the grounds that they suspect, even with good reason, that the marriage is one of convenience because under current law the marriage would be valid. He summed up the position succinctly, and went so far as to call on the legislature to resolve the situation;

“I quiet appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory then it is of course in principle open to the Oireachtas and if needs be the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult once and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and again if needs be the Union legislature can resolve”

We too call on the Minister to take action in this area, as it is to the great disservice and frustration of all genuine applicants in the EU Treaty Rights process that the fraud is permitted to continue.

ZAMBRANO UPDATE

 POSITIVE DECISIONS IN ZAMBRANO APPLICATIONS 

We are happy to update you that the Minister is now granting permission to reside to the “Zambrano” cases which are currently before the High Court. These are the cases which involve challenges to the deportation orders issued against parents of Irish citizen children. Following the European Court of Justice decision in the case of Zambrano v. Office national de l’emploi, Case C-34/09, 8^th March, 2011, all these cases were transferred into a separate list in the High Court, which has been called  “The Zambrano List”. When these cases were last listed in court, the Minister undertook to contact each of the Applicants prior to the 25^th July 2011 to confirm the Minister’s position on their respective cases.  Recently, we have received a number of correspondences indicating that the Minister is now revoking the deportation orders against these applicants, on “exceptional grounds”, and granting a three year period permission to reside. This permission to reside is subject to the condition that the applicant obey the laws of the State, do not become involved in criminal activity, make every effort to gain employment, not become a financial burden on the State and play an active role in the Irish child’s life. We very much welcome these positive decisions.

Karen Berkeley, Brophy Solicitors

20.07.11

Proposed changes to Business Permission criteria

CHANGES TO BUSINESS PERMISSION CRITERIA

Brophy Solicitors has received a number of enquiries regarding the Department of Justice's proposed policy changes in respect of the eligibility criteria for Business Permission in the State. While the details of these proposed changes has not yet been confirmed, we understand that the purpose is to lessen the current restrictive requirements that businesses setting up in this State must meet. We welcome the proposed changes as the current criteria have proven to act as a bar to many genuine businesses locating to this State, particularly the non negotiable requirement of an initial investment of €300,000. In the current climate, it would seem only reasonable to encourage further business and employment to the State, rather than prohibit it. However, as far we are aware, there has been no move towards implementing these changes in recent months. We have contacted the Business Permission Section of the Department of Justice to request for further information on the proposed changes, and  we have been informed in response the current policy remains as detailed on the INIS website.

We will keep you updated as to any further changes in respect of this matter.

Karen Berkeley, Brophy Solicitors

19.07.11

Update on the rights of residency of dependant parents

POSITIVE DECISION ON RESIDENCY RIGHTS OF PARENTS OF ADULT IRISH CITIZENS

We were very happy to obtain a (very!) positive decision from Mr Justice Hogan in respect of a case we had taken challenging the Minster for Justice’s refusal to grant permission to reside for the dependant elderly parents of an Irish citizen. The hearing was for leave to apply for Judicial Review, and the fact that this case ran for three days reflects the complexity and novel nature of the legal submissions being made.

The argument submitted by the Minister was that the no right existed for adult Irish citizens to have their dependant parents reside with them in the State, and any infringement of family rights was reasonable, proportionate and properly within the Minister’s discretion.  A central point in the case thus became whether the circumstances of the Applicants, as Irish citizens applying for their dependant parents to reside with themin in the State, triggered the protections of Article 41 of the Constitution.

  “1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

Mr Justice Hogan clearly confirmed that the rights of Irish citizen adults to the company of their dependant parents does engage Article 41 of the Irish Constitution. He stated that the decision to care for elderly parents clearly engages the “moral nature of the family as an institution”. This is an important legal point, and one which had not been previously confirmed by the Irish Courts.

Mr Justice Hogan made some further very important findings in his judgement – he has re  defined the concept of financial dependency, which in the case of TM v Minister for Justice was held to mean "essential support". Mr Justice Hogan instead held that to financial support which is "appreciable and significant in the context of the recipients" is sufficient to amount to dependency.

We believe that the decision recognizes some important factors in family and immigration law, and will be very relevant in many cases concerning Irish citizens seeking to be joined in the State by their family members.

See article in the Irish Times, July 1^st 2011, covering the High Court’s decision.

Karen Berkeley, Brophy Solicitors

05.07.11