Wednesday, August 31, 2011

THE BEST INTEREST OF THE CHILD PRINCIPLE



RECENT UK CASE LAW ON THE BEST INTEREST OF THE CHILD PRINCIPLE




In a sequence of cases before the Irish High Court involving deportations of parents of Irish citizen children, (see case of Alli and Isobor and the Minster for Justice), the “Best Interests of the Child” principle became overshadowed by a different legal principle, which one could call the “legitimate aims and obligations of the State” principle.  Theses cases set a precedent that an Irish citizen child’s rights to family life is not breached by a deportation order against the child’s parent unless there is “insurmountable obstacles” preventing the family moving to the home country of the parents and carrying on their family life there.

The UK Supreme Court have set a very different threshold for the assessment of such cases in focussing first and foremost on the best interests of the child, whatever the nationality of that child. The case of ZH (Tanzania)[1] (concerning the removal of a non-British parent of a UK citizen child) held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale in the above case provided the leading judgment:

In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

Following ZH (Tanzania), the obvious question became how far can the “Best Interest of the Child ” principle be extended? Could it be argued that it is always in the best interest of a child to remain in a relatively wealthy and socially protected State such as the UK/Ireland, by way of comparison to the State of nationality of the child? Could the “Best Interest of the Child ” principle be successfully applied therefore to children of non EEA nationality seeking to remain in the UK/Ireland on the grounds of  better standard of living perhaps?

In the case of  E-A (Article 8 – best interests of child) Nigeria, judgement issued on the 22nd July 2011, Mr Justice Blake, (President of the Upper Tribunal, Immigration and Asylum Chamber) shed light of these queries while assessing the rights of a family of Nigerian citizens to remain in the UK pursuant to Article 8 of the European Convention of Human Rights. The family were residing in the UK on the basis of student/ dependant temporary permission, and arguments were made on behalf of the children that it was in their best interest to remain in the UK rather than be returned to Nigeria.  It was interesting to see how Mr Justice Blake interpreted the Supreme Court’s case of ZH (Tanzania) in light of the facts before him, ultimately finding that neither Article 8 or the “Best Interest of the Child ” principle was infringed by returning the family to Nigeria. The following are the principles points highlighted in the judgment;


(i)              The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii)            Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case

(iii)          During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv)               Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v)                The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.


We hope to see the Irish Immigration process moving in similar line to the UK, that is to make the “Best Interest of the Child ” principle a matter or primary consideration is cases involving the residence rights of children and their parents, what ever the nationality of the child. 

31.8.11
Brophy Solicitors


[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

Tuesday, August 30, 2011

“IMMIGRATION IS, ON THE WHOLE, GOOD FOR ECONOMIES”

We were interested to read the article 'Let Them Come' in this week’s Economist that concludes: “Immigration is, on the whole, good for economies.”  

The Economist argues that migrants are generally good for rich countries, even in these recessionary times. The flexibility and willingness of new workers migrating in can boost productivity and encourage innovation. But when economies are at low ebb, governments are reluctant to leave migration flows to the labour market and are quick to reintroduce limited border controls, they argue.

Such a response is starkly illustrated in the UK with the introduction of the points based immigration system and the recent so-called ‘cap’ on inward immigration. But even such efforts to control inward migration do not always work. An article in the Guardian newspaper last week commented on the actual rise in immigration into the UK as EU migrants arrive to fill gaps in the employment market.

Meanwhile, here in Ireland, we have seen a progressive tightening of the rules on employment permits. Our own experience shows that it is becoming increasingly difficult for applicants to obtain permission to work in the State. In visa refusals, we see the oft-repeated argument that the applicant risks becoming a burden on the State: economic considerations are alive and well in the Department.

But the Economist makes some sound arguments in favour of flexibility and leaving economic migration flows to the labour market. Migrants are needed to fill skills gaps; they provide a flexible, mobile work force. When they are here, they work hard and are valued employees. Concerns about public services and immigration in such hard times are understandable. But immigration is generally good and even in these tough times, the government should think twice before tightening border controls any further.

Brophy Solicitors
30.08.11

Thursday, August 25, 2011

STAMP 1 A – RECKONABLE OR NOT?



In the recent months, our office has received a substantial number of queries from clients who are ACCA trainee accountants and resident on Stamp 1 A status. The queries relate to whether their status is reckonable for the purposes of acquiring Irish citizenship by birth for their children, pursuant to the terms of the Irish Nationality and Citizenship Act 1956 (as amended by Section 4 of the Irish Nationality and Citizenship Act 2004). They also inquire as to whether their status is reckonable in respect of the Naturalization process, pursuant to of Section 14 of the Irish Nationality and Citizenship Act 1956.

The cases that have come to our attention include contradictory directions from GNIB, the Department of Justice and the Passport Office as to whether the applicant’s Stamp 1 A is reckonable or not. In a number of cases, the clients have received letters from GNIB indicating that their periods of Stamp 1 A are reckonable, while the Passport Office has regarded the same periods as not reckonable in respect of applications for passports for their children. 

Each of these clients who have been refused passport for their children have instructed that they are aware of trainee accountant colleagues on Stamp 1 A status who have been issued passports for their children in similar circumstances. According to one client’s instructions, such a passport was issued on this basis within the recent months. They are understandably very frustrated over such inconsistant policies in respect of elibibility for Irish citizenship by birth.

Stamp 1 A is the designated stamp for trainee accountant. It is described on the INIS website as follows; This person is permitted to remain in Ireland for the purpose of full time training with a named body until a specified date. Other employment is not allowed.”

An Information leaflet titled “General Information on Irish Citizenship”, as posted on the INIS website, explains the entitlement to citizenship by birth as follows;

“A person born in the island of Ireland after 1 January 2005 is entitled to Irish citizenship only if, during the four year period immediately preceding the person’s birth, one of the parents has been resident* in the island of Ireland for a period of not less than three years and neither parent was entitled to diplomatic immunity in the State”

A note in respect of residency is added as follows;

“certain residence is not reckonable, including unlawful residence, residence granted for the purpose of study and period where there was a provisional permission to reside granted pending determination of an asylum application ”

Further difficulties arise in respect of Stamp 1 A status in the Naturalization process. It is not clear stated in the recent Departmental Guidelines of July 2010 whether a stamp 1 A is reckonable or not for the purposes of Naturalization/ Citizenship by birth. We have noted that the new Citizenship Application Form indicates that stamp 1 A is not reckonable. However, the new reckonable residence calculator on the INIS website indicates stamp 1 A is reckonable in the calculation.

It appears from some letters we have seen from the GNIB that the status of trainee accountants on stamp 1 A is reckonable. While in other letters issued from the GNIB the trainee accounts have been registered on stamp 1 permission, as opposed to stamp 1 A. Thus, their residence on stamp 1 is reckonable residence. Sometimes, it seems that the GNIB have used the stamp 1 and stamp 1 A interchangeably.

We have sought clarification from the Citizenship Section of the Department of Justice, and I have been informed in writing that stamp 1 A is not reckonable. However, when we rang the Citizenship Section in July last to seek clarification on the point and we were informed that stamp 1 A is “definitely” reckonable for the purposes of Naturalization. We asked that this point be confirmed, and we subsequently received a further telephone call to confirm that Stamp 1 A  was reckonable.

We have requested Citizenship Section to provide us with copies of the current and past Ministerial guidelines in respect of reckonable residence for the purposes of Irish Nationality and Citizenship Act 2004. They have not yet been provided to us.

We have today again requested from the Minster provide us with a clear statement as to the current Departmental policy in respect of this issue.

We submit that residency permission under stamp 1 A is designed for trainee accountants, as opposed to students, and therefore evidenced by a variation of the Stamp 1 (worker permission) as opposed to stamp 2 (student permission). Furthermore, the conditions of the ACCA qualification process necessitate that the trainee obtains work experience.We submit that it is certainly arguable that Stamp 1 A should be properly regarded as reckonable. However, most importantly, we would argue that it is unacceptable for such unclear and contradictory policies, directions and decisions to continue between the relevant bodies in respect of a matter as fundamental as the eligibility of Irish citizenship. 

Brophy Solicitors
25.8.11


REVIEW OF DEPORTATION PROCEDURE NEEDED

BROPHY SOLICITORS strongly urges the Minister to review the conduct and manner in which deportations are carried out in Ireland. The decision to detain a young mother for deportation hours after she suffered a miscarriage is appalling to say the least. The incident was reported by Carl O’Brien in the Irish Times last Wednesday.  

This situation highlights the often inhumane and unjust way in which deportations of men, women and children are handled by the State.  All deportees should be treated with decency and with respect.  The trauma that this young woman suffered is unimaginable. 

Unfortunately we have come across upsetting cases concerning the removal of individuals from the State.  One particular case that we are still actively pursuing concerns a family, the children and father of which were subjects of a deportation order earlier this year.  The case has been resolved and the family has been granted the right to reside in the State.  Without going into the particulars of their case, we were concerned at the manner in which the children, who are also siblings of an Irish child and children of a lawfully resident parent, were treated following their removal from the family home.  

Their father commented: ‘Words are not enough to give a vivid account of how the family felt when the government came to deport three of my children very early in the morning of the 15th of December 2010.  Our happiness turned into sorrow, pain and anguish. The children and my wife were devastated. They were not allowed to brush their teeth or take their bath. We hurriedly packed our things and followed seven GNIB officers onto the bus outside. My little daughter cried all through the day and was crying for her siblings who were taken away from her with her father who has been a necessary support to her. The treatment by the State and the then Minister of Justice made us believe there was no human rights in Ireland. The children will live with the trauma of that ugly chapter for the rest of their lives.   The family was totally devastated and remain traumatised to date.’

In the end the deportation did not go ahead due to the speedy actions of the family’s solicitor at that time.  Thankfully all three children have now been granted permission to reside in the State after submissions were made to the Minister in respect of their lawfully resident mother and father and Irish sibling who are all residing in the State.   All three children have suffered difficulties in school and attend counselling as a result of how they were treated.

Brophy Solicitors
25.08.11

Wednesday, August 24, 2011

ZAMBRANO UPDATE



 APPLICANTS FROM OUTSIDE THE STATE

We have made a number of applications for fathers of Irish citizen children residing outside the State to join their Irish citizen children in Ireland.  The procedure necessarily involves an application to the appropriate Irish Embassy for a long-stay visa to enter the State.  The delays on such applications have already been considerable and yesterday we received  notification from an Irish Embassy confirming that because we had raised ‘Zambrano type submissions,’ in our application for a long-stay visa for the father of an Irish child, the matter would be sent for ‘further investigation’ to the offices of the Department of Justice and Equality in Dublin.   The note concluded that as there have been large numbers of applications submitted in light of the Zambrano judgement it may be some time before there is a decision on these cases.

It therefore appears that Visa Offices outside the State are taking roughly two to three months to review applications before sending the same application for further investigation to Dublin.  We have been told by the Visa Office in INIS that they will take a further 2 months to conclude their investigations, but in reality are taking longer again. Surely this delay is unjustified!

We might remind the Minister about his Statement he released on the 27th April 2011.  We include the link<http://www.inis.gov.ie/en/INIS/Pages/PB11000004> to this Statement but you will find that it has expired as the statement has been removed from the INIS website.  Luckily we saved a copy of the Statement on our files.   Parents of Irish citizen children ‘outside the State’ were listed as one of the definitive eligible categories of applicants designated by the Minister following the Zambrano decision.  The Minister was very clear in his note below that applicants outside the State should apply to a local Embassy/Consulate and provide documentation showing a ‘clear link to the Zambrano judgement.’  It appears that problems have arisen within the Department concerning this category of applicants and further information has not been provided to date.

It is interesting that Department subsequently (some time around the 12th July 2011) released revised guidelines in respect of eligibility for “Zambrano Applications”. See the following question and answer currently posted on the INIS website (http://www.inis.gov.ie/en/INIS/Pages/WP11000038);

Question 3


“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

This statement appears to be in direct contradiction to the Minster’s earlier statements in April 2011. We regard the position to be somewhat different to the Minister’s current very restrictive interpretation of the Zambrano judgement. We submit that the rights upon which a parent of an Irish citizen can rely arises from the Treaty of the Functioning of the European Union, including in particular Article 18, Article 20 and Article 21. We would highlight that while the ECJ cases such as Zambrano and Zhu and Chen are certainly very relevant to the Applicant’s situation, the judgements are not in themselves the primary source of law upon which the Applicant relies - which is the Treaty of the Functioning of the European Union.  We submit therefore that the Minister’s apparent exclusion of the parents of Irish citizen’s not resident in the State is not in accordance with EU Law.

We continue to submit applications for visa/residency for parents outside the State who wish to join or re-join their Irish citizen children residing in the State.  It is unfortunate that many of these applicants were deported shortly before the Zambrano decision came through.  They have now spent several months apart from their families with the prospect of now having to wait for a further considerable period until their applications have been decided.  We call upon the Minister to immediately review his position in light of his earlier comments.

Brophy Solicitors
24.08.11


Thursday, August 18, 2011

CRISIS IN EAST AFRICA


Last week we met with a young Somali client who told us that six members of her family, including her mother and five young siblings, have recently arrived in Dadaab refugee camp in northern Kenya. Our client explained the dire situation of insecurity, violence and malnourishment her family had fled from in Somalia and the ongoing challenge to survive even in the relative safety of the camp. She had not heard from her family for over three years until she located them in Dadaab.

This disturbing story has brought home the widespread suffering arising from the crisis in East Africa. We have all seen arresting images over recent days and the famine appeal donations are fortunately well under way.

What is often not considered despite the striking images of vast refugee camps is the so-called ‘refugee burden’. The reality is that the refugee population in the developing world is far greater than that in the developed world. It is countries like Kenya that are hosting huge numbers of desperate refugees relative to the small numbers that come to countries like Ireland (in 2010, we were hosting a total of around 9,000 refugees while Kenya was hosting over 400,000). There are often worrying misperceptions about the numbers of refugees arriving in Ireland and other European countries. In June 2011, UNHCR estimated that four fifths of the world’s refugees are being hosted by developing countries, such as Kenya and Pakistan.

For our own client, she has now been residing in Ireland for over three years, waiting for a decision on her case. As a young lone female Somali, we would argue that there is currently no prospect of her returning safely to her country, particularly in light of the recent decision of the ECJ in Sufi & Elmi v UK. Unfortunately, it is likely our client will wait several more years for a decision from the Department of Justice and this may be a negative decision. In the meantime, she must try to support and stay in contact with her family and hope for a more secure future for them all. While this client has been waiting three years, at lease one of our Somali clients has been waiting since mid 2005 for a determination of her application for family reunification. We would call on the Minister to prioritise Somali cases given the desperate humanitarian situation and the dire impact of these delays on applicants and their families.  

Brophy Solicitors
18.08.11

Tuesday, August 16, 2011

IMPACT OF ZAMBRANO: RESOLUTION FOR MR & MRS HURLEY



We noted with interest the positive development in the long running case Gerard and Caroline Hurley that has now finally been resolved. The grant of permission to Mrs Hurley to work and reside was reported by the Irish Times over the weekend. The Irish Times also reported on the plight of Mrs Hurley back in December. 


Caroline Hurley applied to remain in the State on the basis of her Irish citizen child and her marriage to Gerard Hurley, an Irish citizen. The Department of Justice were pursuing the deportation of Mrs Hurley but it appears they had to review their decision following the landmark decision of the European Court of Justice in Zambrano.

We are working on several similar cases and despite some delays in the Department actually processing the so-called Zambrano applications, applicants are finally meeting some resolution and being granted permission to remain. While we obviously welcome the decision of Zambrano and its timely application, we remain surprised that the Department were so intent and often were able to deport individuals such as Ms Hurley, despite their Irish citizen children and Irish spouses and the protections of family life under the Irish Constitution, the European Convention on Human Rights, and the Charter of Fundamental Rights.

We would be interested to hear of any concerns or problems arising from the Zambrano decision and will of course be keeping you update to date on any new developments or successes we have in this area.


Brophy Solicitors
15.08.11

Monday, August 15, 2011

RESIDENCE RIGHTS FOR DEPENDANT PARENTS OF ADULT CITIZENS OFTHE STATE





There has been some media attention in Australia regarding the compelling story of Mrs Jefferson, the 96-year-old  British citizen, who was refused permission to reside in Australian on the basis of dependency on her Australian citizen family members. A  Deportation Order is thus threatened against her. Mrs Jefferson’s age, medical circumstances and her strong family connections to Australia, including Australian great grandchildren, made for a very strong case for residence on the basis of dependency. Furthermore, the family are fully financially self sufficient and posed no risks of financial burden on the Australian State. Despite these many factors in her favour, last week the Australian Immigration Department refused her pending Contributory Parent Visa. This type of visa allows parents to join their children in Australia provided they can support themselves. The decision has caused much controversy in the Australian media, and the Immigration Minister, Mr Chris Bowan, has made public statements to indicated that his Department would work towards finding an avenue which might allow Mrs Jefferson to stay with her family in Australia. 

It would seem to any reasonable person that the facts of Mrs Jefferson’s case are so compelling that permission to reside should have been automatic. However, this has not been the case in respect of the Australian Immigration rules, which are notoriously restrictive. By way of comparison, the UK Immigration Rules explicitly provide for “indefinite leave to enter and remain” for persons in Mrs Jefferson’s situation, i.e. those who are over the age of 65, are wholly or mainly dependant on the British citizen, financially self sufficient and without close relatives in home country for support. 

By way of further comparison, the Irish State’s current position in respect of the right to reside for dependant parents of Irish citizens is restrictive in the extreme – there is no visa or residence permission in existence for dependant parents of Irish citizens because the State argues that such right does not exist. This point is the subject of High Court proceedings taken by Brophy Solicitors on behalf of a South African elderly married couple, dependant on their Irish citizen daughter and family. The family are in a good financial position, and as in Mrs Jefferson’s case, there is no risk of our clients becoming a burden on the State. We strongly believe that the Department of Justice’s continued refusal to grant this couple a right to reside is out of line with International Immigration  law and policies, and in disregard of the special protections afforded by the Irish Constitution to the family unit.  The substantive High Court hearing of this case is scheduled for October next. 

15.8.11

Brophy Solicitors

Friday, August 12, 2011

REGISTRATION OF NAME ON BIRTH CERTIFICATE


PRACTICE NOTE ON REGISTRATION OF FATHER’S NAME ON BIRTH CERTIFICATE
We receive many queries regarding the registration of a father's name on the birth certificate of an Irish citizen child where the couple is not married. We can summarise the procedure as follows:
If the mother of the child is married to someone else other than the father of the child, her husband must complete a statutory declaration to state that he is not the father on form CRA 7 available from the Registry Office.
Alternatively, the mother must complete a statutory declaration stating that she is divorced, judicially separated or living apart under a decree of nullity for more than 10 months prior to the birth of the child.  She must accompany form CRA 8 with a court order i.e. a Decree of Divorce.
If neither of these options suit, an order from the court may be submitted by the mother or the father naming him as father of the child, in respect of an application for Guardianship/Maintenance or other application under the Social Welfare Act. Form CRA 5 is used by the mother of the child and Form CRA 6 must be used by the father. 
Some of our clients have been advised to apply to court for guardianship prior to registration of the father’s name on the child’s birth certificate in cases where the mother remains married to someone else, but has no contact with her husband. If she was in touch with her husband and he was willing to assist, we were advised that she could arrange to have form CRA 7 sworn by her husband, attend the Registry Office with the father of the child who must produce his passport and registration would proceed.
Where the parents of the child are not married to each other and wish to include the father's details where these were not included before, the couple should make enquiries directly with a Registrar of Births, Deaths & Marriages. The Registrar will advise you as to what documents and information will be required. We contacted the Dublin Registry Office and in cases where the mother is not already married it appears that both need to produce passports and attend for a meeting with the Registrar. 

Difficulties will obviously arise if the father is unable to produce his passport for registration.  We have advised some of our clients that the best way forward in these cases is to apply for guardianship before the courts prior to registration.  We have sought the return of passports that have been held for several years with the Garda National Immigration Bureau in cases where the client is the father of an Irish citizen child. 

You can contact the General Register Office for more information.



     Brophy Solicitors
     12.08.11

Thursday, August 11, 2011

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors
11.08.11

NATURALIZATION

CLARIFICATION FROM CITIZENSHIP SECTION ON QUERIES RELATING TO NEW NATURALIZATION APPLICATION PROCESS


Since the introduction of the new application forms for Naturalisation Brophy Solicitors has received a number of enquiries from concerned clients which we submitted for clarification to the Citizenship Section of the Department of justice and Law Reform .

Firstly we sought confirmation from the Minister that the old policy of waiving two of the five years reckonable residency requirement, in relation to applications from refugees, was still applicable as there is no mention of it on the new Form 8. The Department confirmed that the position remains the same: the Minister, in his absolute discretion, will waive two of the five years required.

Secondly we sought clarification in relation to applications made by refugees on whether time spent in the asylum process was reckonable. The Minister confirmed that for applicants with refugee status the Minister, in his absolute discretion, will allow credit for time spent in the asylum process when calculating reckonable residency.

Thirdly we asked the Minister for clarification regarding the use of Form 9. This form is to be used only on behalf of a Naturalised Irish citizen on behalf of their children. It cannot be used by Irish citizen by birth to apply of behalf of their non-Irish child.

We have also been informed by the Citizenship Section that it is the aim to have all applications submitted by September 2012 determined within a six month period.
Brophy Solicitors
11.8.11

Wednesday, August 10, 2011

The Equality Authority Report on 2010

The Equality Authority of Ireland launched its 2010 Annual Report yesterday (9th August) in Dublin.

Speaking at the launch, Ms Angela Kerins, the Chairperson of the Equality Authority, highlighted the importance of continuing to promote equality, by maximising the resources available as a key element of Ireland's economic recovery, "Foreign direct investment will play an important role in Ireland's growth and the country must be able to offer a place where overseas companies who are willing to invest in Ireland are comfortable placing their staff. Multinationals need to perceive Irish society as pro-equality and pro-diversity".

At Brophy Solicitors we welcome Ms. Kerins's comments on the need to promote a friendly, welcoming environment for foreign investment in these difficult times.

We also agree with Ms. Kerins that there is a need for further development in equality legislation in Ireland in recognising the rights of the child and the diversity of families. Ms. Kerins stated that ‘equal marriage remains a goal for the Equality Authority.’ In all cases, the best interests of the child should remain central. Perhaps the planned referendum on the rights of the child will afford the government the opportunity to ensure equality for every child and family in the State.

Sarah McCoy
Brophy Solicitors
10.08.11

Tuesday, August 9, 2011

CITIZENSHIP UPDATE


Amendments to the Irish Naturalisation and Citizenship Acts 1956 to 2004 provided for in the Civil Law (Miscellaneous Provisions) Act, 2011

Part 10 Section 33 of the Act provides for the following amendments:

  • That civil partners will receive the same treatment as married couples in the context of citizenship matters. This means that civil partners of Irish citizens will now only need three years reckonable residency to apply for Naturalisation.  Applicants will have to provide documentary evidence of the partnership and will still have to comply with the other requirements for Naturalisation i.e. be of good character, self-sufficient etc. Brophy Solicitors welcomes this legislation, which brings equality in the processing of Naturalisation applications between spouses and partners of an Irish citizen.
  • That the citizenship ceremonies take place in a manner prescribed by the Minister. Until recently a person granted citizenship took an oath before a District Court Judge and the new citizen subsequently received their Certificate of Naturalisation by post. Howover pilot ceremony took place in Dublin Castle on 24th June where Justice Bryan McMahon, retired judge of the High Court, assumed the role of presiding officer. At this ceremony new citizens recited a declaration of fidelity to the nation and loyalty to the State. It is hoped that similar ceremonies will be run throughout the country in future. 
  • That the Minister will prescribe the fees for applications for Naturalisation. The current fee is €950. 
Brophy Solicitors
09.08.11

EVENT ON CHILD TRAFFICKING 29.08.11

 

The Irish Socio Legal Studies Network Event - Trafficking of Children and Separated Children
 

The Socio-Legal Research Centre in Dublin City University will host an event addressing topics of trafficking children and separated children.  Professor Rebecca Wallace from Robert Gordon University and Detective Superintendent Noel Clarke from the Garda Anti-Human Trafficking Unit shall be guest speakers.  A short reception will follow.

Room HG28 - 5pm 29th August 2011.

Brophy Solicitors 
09.08.11

Monday, August 8, 2011

Amendments to the Immigration Act 2004

NEW LAW IN RESPECT OF OBLIGATION ON NON NATIONALS TO PRODUCE IDENTITY DOCUMENTS ON DEMAND

The Civil Law (Miscellaneous Provisions) Act, 2011 was signed into law by the President on 3 August, 2011. The Act contains amendments to the Immigration Act, 2004  which will positively impact non nationals resident in the State, and particularly those non nationals resident pursuant to the EU Free Movement laws.

The changes derive from the recent High Court judgement of  Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008) in which it was held that Section 12 of the Immigration Act 2004 was unconstitutional. This Section had placed an obligation on all non nationals in the State to produce on demand a valid passport or equivalent document or GNIB Registration Certificate, and refusal to do so without satisfactory explanation was deemed an offence punishable by up to a term of 12 months imprisonment. This Section was the basis upon which many non nationals have been detained in Irish prisons. Many detainees have remained in detention for prolonged periods of time because they could not produce their passport/identity documents and therefore were regarded as on going offenders pursuant to Section 12.

Section 34 of The Civil Law (Miscellaneous Provisions) Act, 2011 contains amendments of Sections 12  (and section 11) of the Immigration Act 2004 which contain particular safeguards in order to render the Act in line with the Constitution. For example, a non-national may now be required to produce on demand “for the purposes of establishing that his or her presence in the State is not in contravention of section 5” a valid passport or other equivalent document establishing his or her identity. Failure to comply with this requirement is an offence, but a defence is clearly outlined as follows;

In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.

The section does not apply to persons under 16 years of age. However, unlike the old section 12, there is no longer an exemption for non-nationals born in Ireland.

A further significant change introduced by these amendments is the exclusion from the ambit of Section 11 and 12 of EEA nationals and their dependents exercising Treaty Rights of free movement.
Many cases we are aware of the non nationals are not in possession of these documents through no fault of their own, for example when the documents have become mislaid by the relevant State bodies, as can often happen. We therefore very much welcome the new restrictions on the arrest and detention of non nationals who fail to provide their identity documents on demand. We also welcome the acknowledgement of the rights of the family members of EU nationals to reside in the State on the same basis as their EU family member and Irish citizens alike.

Brophy Solicitors
08.08.11

Thursday, August 4, 2011

EU TREATY RIGHTS


RETENTION OF RESIDENCY PURSUANT TO EUTR IN CASE OF DIVORCE/SEPARATION

We confirm that we have received a positive decision from the EUTR Section confirming that our client may retain residency in the State on the basis of EU Treaty Rights on the grant of a divorce from his EU National spouse. In March 2011 we had notified the Department that our client was the holder of residence card pursuant to Directive 2004/38/EC and the 2006 Regulations since December 2007, having been married to an EU national since 2004.  We further notified the Department that he and his wife were recently divorced. We called on the Minster to confirm our clients right to retain his right to reside in the State.  We relied on Article 13 (2) (a) of Directive 2004/38/EC, as implemented by Regulation 10 (2) (b) of the 2006 Regulations, which provides that family members of Union Citizens shall not entail the loss of the right of residence in circumstances where, prior to the initiation of the Divorce, the marriage lasted 3 years, one year of which was in the Member State.  By decision of July 2011, the Minister responded in the following terms, “We can confirm that your client retains his current right of residence”.

We welcome this decision. However, we now call on the Minister to issue similar decisions in respect of pending applications where the applicant is separated, but not yet divorced from their EU National spouse. 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 Article 13/Regulation 10. 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.

Brophy Solicitors
4/8/11

Wednesday, August 3, 2011

Family Reunion applications: An update


UPDATE ON FAMILY REUNION APPLICATIONS

There has been a recent change to the form sent out by the Office of the Refugee Applications Commissioner (ORAC) to be completed by those applying for family reunion as a refugee.

The previous form was a reasonably short document requesting information regarding the family relationships and the circumstances of the family members. The form also required details of the refugee’s financial and accommodation situation in Ireland.

The new form now being sent out by ORAC is considerably longer. It requests specifics of any dependency between the refugee and the applicants. The form also requests relatively detailed information on the financial circumstances of the applicants, including how they are financially supported, whether they are working, and whether they are capable of supporting themselves financially.

What is particularly noticeable is the updated list of documents now requested by ORAC to support the application. Many of the new documents listed refer to minor applicants and required documents include for example evidence of schooling, evidence of legal guardianship, original death certificates if the minor child’s parents are deceased. The list stretches to 37 documents that may be requested in total as compared to the 10 documents previously requested on the old form.

In some respects the new form may be welcomed. We have often had clients complete the old form and then receive a letter from ORAC listing a huge number of further questions therefore delaying the processing of the application. However, we have ongoing concerns about the level of supporting documentation that the refugee and the applicant(s) are expected to provide to support the application. These documents are often simply unobtainable particularly for Somali clients and there is often little or no consideration given to reasonable explanations of why such documents may not be available to applicants.

We would highlight that any consideration in respect of dependency in such applications must take into account the recent decision of Mr Justice Hogan in the case of RX, QMA and CXN v Minister for Justice Equality and Law Reform, delivered on the 10th December 2010.  Mr Justice Hogan emphasized that the word “dependency” within the meaning of Section 18 of the Refugee Act refers to dependency in fact - i.e. that dependency existed when the subjects of the family reunification application depended for financial survival on the remittances transmitted by the Applicant, even though she in turn was herself dependant on social welfare payments in this State. Mr Justice Hogan further emphasized that whether the Applicant could maintain the family members in Ireland on arrival is not the test that Section 18 (4) posits.

On a general note, a major ongoing concern for us in relation to family reunion cases are the extensive delays our clients experience in having the applications determined. We were recently instructed by a client who has been waiting since 2007 for his application to be determined, and since this time, his family members have become separated and one of them has disappeared. We are fortunate to have now been able to move this case along for the client but there has been no explanation or apology for the delay to date.

As always, we welcome any queries or comments you may have on this issue.

Brophy Solicitors, 03.08.11