Monday, January 23, 2012

Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 
Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.
A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.
Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.
These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.
Brophy Solicitors
23.01.12

Friday, January 20, 2012

Stay on Deportation Order Issued


A Nigerian man has been issued a stay on his deportation in the High Court today, despite alleged deception on his part in relation to his identity as a former male model working for a UK property firm. Mr Justice Hogan issued the stay but stressed that his decision was "exclusively" motivated by the welfare of a child "Baby C". The infant is the child of the woman who has made the aforementioned allegations. The man in question is part of unfinished District Court proceedings in relation to care and custody of this child. The stay on proceedings will hold until the District Court makes a decision. If the man is successful in the District Court, the State must reassess his deportation order on foot of the child’s right to the care and company of her father balanced against a fair immigration system. If he is unsuccessful, the stay on the deportation order will lapse.

The man in question entered the State illegally on another man’s passport but claimed asylum under his own name. The passport had been stolen in Vienna and thus the Nigerian gentleman pled guilty and served a 6-month sentence for handling stolen goods.

After forming a relationship with a professional Irish woman, it transpired he deceived her into thinking he lead an affluent lifestyle as a former male model working for a UK property firm. She had no knowledge of his criminal convictions or his involvement in the asylum process. The baby was born in late 2010 but the relationship had already broken down. The woman claims that the applicant’s interest in guardianship and custody are a mere ploy to aid his immigration issues.

As there seemed no particular hope of reconciliation between the pair, Mr Justice Hogan was of the opinion that should the gentleman be removed from the state, it was reasonable to believe that he would not have any contact with Baby C, thus he granted a stay on these grounds.


Brophy Solicitors
20.1.12

Thursday, January 5, 2012

The Issue of Non English Speaking Deponents Swearing Affidavits

A recent article in the Law Society Gazette by David Boughton, a practicing barrister, explores the difficulties encountered by solicitors when swearing affidavits of clients who cannot understand English. He draws attention to a prevalent issue. No provision has been made for any procedure of swearing and filing of affidavits by litigants who speak little or no English in neither rules of court nor legislation as noted by Cooke J of the circumstances of ANM v Refugee Appeals Tribunal. 

The author notes the decision of Cooke J in Saleem v Minister for Justice in deciding on the striking out of an affidavit, which contained an error of communication. The judge recommended, given that the applicant did not speak English at all, the approach of a further procedure to be followed for the swearing of affidavits by such persons. It followed that the affidavit should be sworn in the language the deponent speaks and should then be translated by an appropriately qualified translator with both the original and translated document to be put in evidence as exhibits to an affidavit in English sworn by the translator. This was since adopted in the English courts in 1998.

This "three affidavit" procedure is now in use here in Ireland although some difficulties are obvious - such as the additional cost and expense of translation. Boughton warns though, that a failure to adhere to this procedure may require that proceedings be adjourned  to facilitate the filing of correct affidavits, and with adjournment orders attributing more costs he advises all practitioners to familiarise themselves with the procedures. 

Brophy Solicitors 
05.01.12


Wednesday, January 4, 2012

UK Immigration Figures Set to Drop

Following the release of Ireland’s falling asylum figures for 2011 comes speculation of a fall due in the number of migrants to the United Kingdom. The Guardian reports today a projected 10% fall in immigration to the UK due to the worsening financial crisis. 


This is still far from the election promise of the Conservative Government of tens of thousands drop in immigration figures. In fact the efforts of the coalition have been severely criticised as making very little headway in regards illegal immigration. Furthermore some new policies on immigration have been seen to hamper economic activity in the UK, such as decreasing the amount of foreign students entering the UK. The UK government remains steadfast in its support of the policies however. 


Read the article in the Guardian examining the difficulties in fulfilling coalition promises of a reduction.  


Brophy Solicitors
04.01.12

Judgment in Rizwana Aslam Case

Case Summary 


On the 20th December 2011 Mr Justice Gerard Hogan issued judgment in the case of Rizwana Aslam v Minister for Justice and Equality, Garda National Immigration Bureau, Ireland and the Attorney General.

The case concerned a challenge against a Transfer Order made by the Minister pursuant to Article 7 of the Dublin II Regulations in respect of a Pakistani national and member of the Ahmadi faith.  Ms Aslam was also eight months pregnant at the time of the High Court hearing. The basis for the Transfer Order was that Ms Aslam had originally obtained a visa for entry to the United Kingdom and resided in the UK prior to claiming asylum in Ireland. In such circumstances, it is permitted by the Dublin II Regulations (or Article 9(4) of Council Regulation (EC) No. 343/2003) that an asylum seeker be transferred to the Member State in which they first arrived to have their asylum application determined. Minister had issued the Transfer Order in accordance with this law, and with agreement from the UK.

The primary relief sought before Mr Justice Hogan was an injunction restraining Ms Aslam’s removal to the United Kingdom. The injunction application was grounded on two main points; that Ms Aslam’s late stage of pregnancy prohibited removal at this time, and also that fact that her partner was a recognized refugee and residence in Ireland required that her application for asylum should be processed in this State.

Judgement
In his written judgment dated 29th December, Mr Justice Hogan firstly assessed whether Aslam and her partner’s relationship and previous marriage by proxy were sufficient to amount to a legally recognizable marriage or “unmarried partner in a stable relationship”, as per the wording of the Dublin II Regulations. Following a detailed review of the law in this area, Mr Justice Hogan recognized that Irish law does differentiate between married and unmarried couples in the area of asylum law. He cited Mr Justice Cooke’s previous dicta in the judgement of Hamza v Minister for Justice [2010] IEHC 427 as follows;

“ the recognition of the marital relationship of spouse and refugee ought not to be confined to cases in which proof is forthcoming of a marriage validly solemnized in foreign law and recognized in Irish law.”

Following Mr Justice Cooke’s guidance, Mr Justice Hogan concluded that Ms Aslam should be regard as being married to her husband for the purposes of Article 7. In the normal circumstance, it would follow from Article 7 that Ms Aslam should be permitted to remain in Ireland for the purposed of her asylum application, as her husband is a recognized refugee in this State. However, as indicated by Mr Justice Hogan, this is not an absolute entitlement, and he highlighted the important fact that the Minister was not put on notice of Ms Aslam’s family circumstances in the State. In fact, she indicated to the Minister that she was single. Mr Justice Hogan found therefore that the Minister cannot be faulted in issuing a transfer order against her and it was too late at that stage for her to exercise her Article 7 rights.

Being mindful of the fact that Ms Aslam was heavily pregnant, Mr Justice Hogan proposed to grant an interlocutory injunction restraining her transfer by either by sea or air to the United Kingdom but allowing a transfer by road to Northern Ireland on the understanding that she would not be removed from the island of Ireland until after the delivery of her unborn child.

Comments
We believe the significance of Mr Justice Hogan's judgement is twofold. Firstly, Mr Justice Hogan fairly and correctly recognised Ms Aslam's marital status despite the fact that her marriage was by proxy, and not legally solemnized in this State. We are happy to see the implementation of the Hamza judgement working to recognize the reality of an asylum seekers relationship status in this way. Secondly, Mr Justice Hogan's finding that the Minister cannot be faulted for excluding from his decision important and relevant information that was not provided to him is reasonable. This is the only reasonable finding that Mr Justice Hogan could make. It again highlights the importance for all applicants and their legal representatives to provide the Minister with full, detailed and accurate information relevant to the case. 

Brophy Solicitors
04.01.12

2011 Immigration Figures Released as Minister Looks Ahead to 2012

Ireland saw a sharp decline in the numbers of asylum seekers entering the country in 2011. Only 1250 people claimed asylum here last year, just 1/10 of the peak figure of 11,600 in 2002.

The decrease in figures has been attributed to increased control measures. These most recent figures are the ninth successive fall in numbers claiming asylum since its highest point ten years ago. But also relevant in the economic downturn as Ireland’s attraction as a desirable destination point wanes.

Minster Shatter announced the figures in a press release yesterday. Alongside statistics  for 2011 came welcome news for those involved in other immigration processes. A clear statement on policy in regards Family Reunification is promised. Also a six-month processing time can be expected for all standard citizenship application from this Spring onwards.

Other measures will include the implementation of an Immigrant Investor Programme, a start up Entrepreneur Programme for Immigrants, a review of the operation of the Pilot Visa Programme, implementation of a Civilianisation officer pilot programme at Dublin Airport, to be launched this month, and completion of work on the development of an English language/Civics test for naturalisation applicants. 

Minister Shatter also detailed that 2012 would see the department looking across the water: ‘In particular, the promotion of the Visa Waiver Programme in the context of the London Olympics will be a key priority with the aim of boosting tourism and visitors to Ireland. Similarly, new initiatives targeted at immigrant investors and entrepreneurs will be prioritised with the purpose of attracting inward investment and job creation.’


Minister Shatter's full statement is available here


Brophy Solicitors 
04.01.12