Thursday, March 29, 2012

EU TREATY RIGHTS AND PERMANENT RESIDENCY – UK DEVELOPMENTS

CASE STUDY:  Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC) is a case concerning  the approach to be taken by the First and Upper Tribunals in deciding whether the non-EEA national family member (of an EEA national) has or has not acquired the right to reside permanently in the UK under Art 16 of Diretive 2004/38/EC which is transposed into UK law by Regulation 17 of the EEA Regulations. The right of permanent residency is acquired by EEA nationals and their family members who have resided in the UKfor a period of 5 years. 

In Idezuna the Nigerian Appellant married his spouse who was a national of Portugal in April 2004.  He had been given a 5-year residence card showing that he was the family member of an EEA national, which expired on the 13 September 2009.  Mr. Idezuna and his wife divorced in March 2010, and Mr Idezuna applied to the appropriate authoirties for a residence card showing that he was entitled to live in the UK permanently. 

Mr Idezuna’s application was refused.  The UK Border Agency said that he had not provided evidence showing that his Portuguese wife had been exercising her EU Treaty rights at the time of their divorce or that he had been living in the UK in accordance with the EEA Regulations for a period of 5 years.  

He appealed the decision to the First Tier Tribunal which upheld the UKBA’s decision, stating that Mr Idezuna had not shown that his ex wife had been exercising Treaty rights in the UK for the 5 years up to the divorce.  He had also not shown that he lived in the UK continuously after marriage. 

Subsequently, the Upper Tribunal found that the First Tier Tribunal judge had materially erred in law.  The judge had failed to appreciate that the Appellant had acquired the necessary 5 years living in the UK from the date of his marriage in April 2004 until April of 2009.  During this time his ex-wife had been in the UK"unbrokenly” exercising her EU Treaty rights.   The Immigration Judge’s error was in failing to include in his calculation of the 5 year period, time prior to the coming into force of the Directive.  (See Secretary of State for Work and Pensions v Lassal (2011) Imm AR 134, in which the ECJ had held that any interpretation of the continuous residence requirement such  that the first or last day of the period of five years' continuous residence had to fall after 30 April 2006 (when the Directive came into force) would be contrary to the purpose and effectiveness of the Directive.)

The Appellant had therefore acquired his right to permanent residence in the UK in April of 2009 (when he was still married to his wife). Whether or not he was living together with his wife for the whole of this period was irrelevant.  The fact that they both had been in the UK was important.  (See also Turkey [2011] UKUT 89 (IAC) (07 March 2011)  Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (UK) applies to those who entered a genuine marriage where both parties have resided in the United Kingdom for five years since the marriage; the EEA national‘s spouse has resided as the family member of a qualified person or otherwise in accordance with the Regulations and the marriage has not been dissolved. The ‘residing with’ requirement relates to presence in the UK; it does not require living in a common family home.)

The second matter to assess was whether or not Mr Idezuna had been living in the UK continuously since the date of marriage.  The Immigration Judge in the First Tier Tribunal had taken this point against Mr Idezuna without giving him an opportunity to comment on it.  In fact, there had been only two short absences which fell comfortably within those permitted by the Directive’s Article 16 (3) and Regulation 3 (2) of the transposed UK Regulations. 

The Tribunal made it clear to the First Tier Tibunal that the focus was not so much directed to the nature of the relationship between the non-EEA national family member of the EEA national. What had happened up to and after Mr Idezuna’s divorce, and what his wife had been doing at those times had in fact been wholly irrelevant to the question of whether he had the right to reside in the UK.

Brophy Solicitors
28.03.12



Monday, March 26, 2012

CASE STUDY – SOMALI ASYLUM SEEKERS AND DILEMMA FACING DECISION MAKERS - QFC, AMC v RAT, MJELR, (2012) IEHC 4

Justice Cooke recently granted leave to seek a judicial review in respect of a negative asylum decision on the basis of the decision maker’s failure to assess the possibility of future persecution open to asylum seekers if returned to Somalia.  Asylum was refused to the Applicant as result of credibility findings but Justice Cooke noted the dilemma that faces decision makers in cases where credibility issues arise but the applicant is also from an undeniably dangerous country. 

Justice Cooke held that, “any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so.”

The judge held that the fact that the Applicant had a child with a man who was not her husband could lead to persecution if she was returned to Somalia. The lack of credibility with regard to past persecution did not exclude the possibility of future persecution. He held that “the particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence.”  

You can read the full judgement here.

Friday, March 23, 2012

CASE STUDY - ‘EXTENDED FAMILY MEMBER’ DIRECTIVE 2004/38EC (UK)

CASE: Dauhoo v. Secretary of State for the Home Department-UK Upper Tribunal (Immigration and Asylum Chamber) Rejects Claims of Applicant that he is an “Extended Family Member”

In this case, the Upper Tribunal (Immigration and Asylum Chamber) clarified what an Applicant must show to qualify as an extended family member of an EEA national for the purpose of being granted a residency card under Article 3(2)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citzens of the Union and their family members to move and reside freely within the territory of the Member State.  The Tribunal, interpreting the UK regulation transposing the Directive, found that an Applicant must show either his dependency on an EEA national relative or membership of the EEA national’s household prior to the Applicant’s arrival in the UK (“prior “ test) AND after his arrival in the UK (“present” test).  The Tribunal rejected the notion that an Applicant was required to show prior and present connection in the same capacity.  It construed the regulation purposively, finding that the requirements of dependency and household membership are alternatives rather than conjunctive because to do otherwise “would be contrary to the stated underlying purposes of facilitating the residence of such persons.”  

The Appellant, a citizen of Mauritius, arrived in the UK on six month visit visa to his sister, an EEA national, in 2004.  He came with his spouse, also an EEA national.  He received grants of permission for leave to remain as a student until 2011.  His marriage broke down in 2009.  He claimed to have been dependent on his sister since his arrival.  He applied for a residence card in 2011 on the basis that he was an extended family member of his sister, which was denied by the Secretary of State for the Home Department on the basis that “there was no evidence to show that you were with or dependent on your sister in another country immediately prior to your arrival in the UK in 2004, nor have you supplied any evidence that since you arrived in the UK you have been resident with or financially dependent on her.”  The Appellant appealed, offering further evidence that since the breakdown of his marriage, he had been in a durable relationship with another EEA national since mid 2009.  The First-tier Tribunal (FTT) judge had upheld the earlier decision, finding credibility issues with respect to the Appellant’s claims and rejecting the Appellant’s claim that he had been dependent on his sister when he lived in Mauritius or when he arrived in the UK.  

However, in the Appellant’s case, the Tribunal found that “whilst [appellant] turns out to have established that he met the ‘present’ requirement … by virtue of being a member of the EEA principle’s household in the UK [the FIT judge’s findings had not expressly made a finding on that issue]” he was “still shut out” because he had failed to meet the “prior” test.  The Appellant, who acknowledged that he could not show prior household membership, had argued to the Tribunal that the FIT judge erred in assessing appellant and his witnesses’ evidence as well as the documentary evidence, in support of his claim of prior dependence on his sister when he was in Mauritius.  The Tribunal found that the FIT judge’s assessment that the Appellant and his witnesses’ evidence lacked credibility was for “sound reasons” and that the FIT judge had acted within his scope in determining that the documentary evidence offered in support of this claim “lacked substance” and was “quite insufficient to demonstrate the appellant’s claimed dependency.”

The Tribunal also found that the FIT judge had not erred in rejecting the Appellant’s argument that he had an EEA claim based on a durable relationship with his EEA partner based on credibility grounds as well as his claim under Article 8 of the European Charter on Human Rights.  With respect to the Appellant’s former claim, the Tribunal agreed that the FIT judge had good reason to find appellant’s claim of having been in a relationship with an EEA national from mid 2009 to May 2011 not credible, as he never mentioned the relationship when he submitted his application for a residence card in January 2011 or when he lodged his grounds of appeal in May 2011, and that “on the judge’s findings the relationship had only been shown to exist, if at all, very recently and on the appellant’s own evidence his partner was economically self sufficient.” 

The Tribunal concluded that, “on the basis of the evidence before the FIT judge a durable relationship had not been established.”    As regards the latter claim that the Appellant’s Art. 8 right to family life had been infringed, the Tribunal concluded that “the judge’s findings of fact (which [he] found to be unaffected by legal error) more than justified him in concluding there was no violation and that he had not sufficiently established family life where he and his sister were both adults and the Appellant was in good health. 


BROPHY SOLICITORS
23.03.12


Friday, March 9, 2012

ROMANIAN AND BULGARIAN NATIONALS – RIGHT TO RESIDE AND ACCESS TO SOCIAL BENEFITS



Romanian Bulgarian nationals who are the parents of Irish citizen children now have access to the Labour Market within Ireland on the same basis as other EU nationals. See “Employment Permit Information for Romanian Naiontals” on the Department of Jobs, Enterprise and Innovation website;


Many of the persons affected by the Minister’s change in policy are in situations where they have been refused access to social benefits, including Jobs Seekers Allowance, Child Benefit payments and Supplementary Welfare Allowance.  Having been refused these payments, they are now without any means of income whatsoever. They have been refused access to social benefits usually on the basis of the Habitual Residence Condition, or for the reason that they are not eligible to take up employment in the State. Many have doubted the legitimacy of refusals on the basis of the Habitual Residence Condition, given that the persons have often resided in the State since 2007, have children in school, and have clearly made Ireland their “centre of interest”.

Until now, these Romanian and Bulgarian nationals’ status in the State has been somewhat unclear. They were not legally resident within the ambit of Directive 2004/38, nor did the State recognize an alternative right to reside under the Treaty provisions. However, there was no legal means under EU law which permitted the State to lawfully require their removal from the State. Many such persons have fallen into destitution, surviving with the assistance of charities and voluntary organizations.

The Minster’s change in policy this week to permit Romanian and Bulgarian nationals who are the parents of Irish citizen children access the Labour Market now changes their status in the State, and also their entitlements to access social benefits. Such persons are now eligible to take up employment, and can commence a legitimate search for employment. Those Romanian and Bulgarian nationals who are already in employment, will be immediately regarded as workers within the meaning of EU law and Directive 2004/38. Their right to reside will be also immediately legitimised. They will acquire the benefits of worker status under EU law, for example, they will have access to the State welfare system, including child benefit payments.  Should they become involuntarily unemployed and register as a job seeker, they will retain their worker status (and thus their right to reside) either indefinitely if they had worked for over one year, or for at least a period of six months if they had worked for under one year.

For those Romanians and Bulgarian nationals, who are the parents of Irish citizen children, and who are not currently in employment, they can now commence a legitimate search for employment, and therefore must be regarded as economically active as Job Seekers under EU Law. Pursuant to Regulation 1612/68, all EU citizens have the right to move within the territory of the EU to seek employment for at least a six month period. As legitimate Job Seekers, they have a lawful right to reside. They can therefore apply to all benefits including Child Benefit and Jobseekers Allowance and Supplementary Welfare Allowance. If they becomes employed (either part time or full time), self employed, a student or financially self sufficient (with health insurance), they then trigger their “worker status”,  and the benefits as described above.

The question now to be determined is when did the Romanian/Bulgarian parents of Irish citizen children commence lawful status in the State? Was it on the 28th February 2012, when the government implemented this change in policy? Or was it previous to this, when the Zambrano judgment was delivered? When the Treaty of the Functioning of the EU was implemented? The answer to these questions could have a signigicant conssequences for those who may have been wrongly refused accesss to social benefits. Most likely, these are questions to be determined by the Court of Justice.

Thursday, March 8, 2012

ROMANIAN AND BULGARIAN PARENTS OF IRISH CITIZEN CHILDREN TO HAVE UNRESTRICTED ACCESS TO THE LABOUR MARKET

We have been informed that a Government decision was reached on the 28th February last to permit Romanian and Bulgarian parents of Irish citizen children unrestricted access to the Labour Market with immediate effect. We understand that notice of this change will be posted on the Department of Job, Enterprise and Innovation this week.

It seems that this change in the law will be automatic, and immediate; Therefore Romanians and Bulgarian who arrived in the State from 2007 onwards and who are the parents of Irish citizen children will not be required to apply for work permits in order to be legally employed in the State. For those already in employment, they will be automatically regarded as legally employed.

The decision comes following a number of cases, which have recently been issued in the High Court to challenge the State’s policy to exclude Romanian and Bulgarian parents of Irish citizen children from the ambit of the Zambrano judgement. In one such case taken by this office, we claimed on behalf of our client that the State had acted unlawfully in failing to give preference to him, as a citizen of the European Union, over third country nationals in respect of access to the labour market in the State. Furthermore, it was argued that the State had acted unlawfully by discriminating against the applicants as families consisting of Irish citizen children with a Romanian/Bulgarian parents by treating them less favourably in respect of the parent’s access to the labour market when compared with families consisting of an Irish citizen children with a third country national parent.

We very much welcome the State’s change in position to accept that all Romanian/Bulgarian nationals, who are parents of Irish citizen children, must have full access to the Labour Market.

Brophy Solicitors

Friday, March 2, 2012

Irish Times Article - Judge tells ill South African couple they can remain in State

http://www.irishtimes.com/newspaper/ireland/2012/0225/1224312374191.html


AN ELDERLY and ill South African couple whose Irish citizen daughter and her husband had offered to allow them live with them have won a High Court order overturning the minister for justice’s refusal to allow them to live in the State.

In his judgment yesterday, Mr Justice John Cooke overturned the minister’s July 2010 refusal to grant permission to Leon (72) and Margaret (68) Lemiere to live here.

He ruled the minister’s decision did not properly take account of the constitutional family rights of the couple’s daughter, Desiree O’Leary, and her husband, and was not based on a fair and reasonable assessment of the facts of the case. The O’Learys and the Lemieres had brought the judicial review proceedings challenging the refusal to allow them remain in the State on grounds including that the decision breached their family rights.

Ms O’Leary, a UCD lecturer, and her engineer husband, Diarmuid, wanted the elderly couple to stay with them after both became ill and housebound following their discharge from hospital in South Africa in 2008.
The Lemieres lived in Durban where security was a constant and daily problem as, despite having elaborate security precautions, their home was a frequent target for burglars, the court heard.

They previously obtained temporary permissions to stay, with their last permission running up to July 31st, 2010, on condition they did not have recourse to public funds or State benefits and services.

In his judgment yesterday, Mr Justice Cooke said he was satisfied the minister had given inadequate consideration to the need for balance between protecting the applicants’ family interests under article 41 of the Constitution and the State’s interest in maintaining the integrity of immigration laws.

The crucial point was not the Lemiere couple’s right to enter and remain in the State, but the O’Leary couple’s constitutional rights as Irish citizens to look after family members within the State.

The O’Leary couple, as adult Irish citizens, and their dependent elderly parents, constituted a family within the meaning of article 41 of the Constitution and, as such, invoked the protections envisaged by that article, he held.

Those protections included the entitlement of the family to run its own internal life and affairs without interference from the State, unless such interference was justified. The judge added he found the O’Learys were open and candid in their effort to find a way to have the parents stay in Ireland.

He rejected arguments by the minister the challenge should be dismissed on grounds there was no express provision in Irish legislation for an Irish national to apply on behalf of a non-EU national who was their dependant to join them in the State. He further dismissed claims of a lack of good faith by the applicants in their dealings with the department.

The minister acted incorrectly in assessing dependency only in respect of financial grounds when dependency was argued in a much broader context, the judge ruled.#

Irish Times
25.02.12