Ahmadiyya Community: Advocate’s General opinion in joined cases of the European Court of Justice; C-71/11 and C-99/11, Bundesrepublik Deutschland v Y & Z

According to Advocate General Bot, a serious infringement of the freedom of religion may constitute an act of persecution where an asylum seeker runs a real risk of being deprived of his most fundamental rights by exercising that freedom. This would be the case where he risks death, inhuman or degrading treatment or of being prosecuted or imprisoned arbitrarily.

The German Federal Administrative Court asked the Court of Justice to set out the circumstances in which an infringement of the right to freedom of religion and in particular of an individuals right to live his faith freely and openly may constitute an act of persecution within the meaning of the directive. This reference arose from a dispute between the German authorities and two Pakistani asylum seekers who are active members of the Ahmadiyya community. This is an Islamic Reformist Movement that the Sunni Muslim majority in Pakistan have long contested and their religious activities are severely restricted by the Pakistan Penal Code. They are unable to profess their faith publicly without their activities being considered to be an act of blasphemy, a charge punishable by imprisonment or even the death penalty.

Directive 2004/83/EC seeks to establish common criteria for all of the member states to recognise the refugee status of asylum seekers within the meaning of Article 1 of the Geneva Convention. Advocate General Bot expressed his opinion that the aim of the common European asylum system is limited to an individual who may be exposed to persecution in his county of origin, which is classed as a serious and intolerable attack on his person and his indefeasible rights. 

Advocate General Bot set out the fundamental nature of the freedom of religion and rejected the idea that only a serious interference with the freedom to manifest one’s religion in private may constitute an at of persecution. The freedom of religion is subject to certain limits in order to maintain religious pluralism and the peaceful coexistence of different beliefs. Certain prohibitions may carry criminal penalties once the penalties are proportionate and determined in compliance with individual liberties. A serious infringement of the freedom of religion may constitute an act of persecution where the asylum seeker runs a real risk of being treated unjustly.

The AG was of the view that the prohibitions in Pakistani law in relation to the situation of the members of the Ahmadiyya community in Pakistan are likely to constitute a serious infringement of the freedom of religion. The penalties may constitute persecution because they aim to deprive any person of his most basic rights if they persist in publicly manifesting their faith by threatening them with imprisonment or death.

The authority responsible for examining an asylum application cannot reasonably expect the applicant to renounce his religious activities to avoid persecution. This would deny him a basic right guaranteed by the convention and also deprive the directive of its effectiveness since it would not protect a person who is exposed to acts of persecution.

Brophy Solicitors

27.04.12 

Case Study: Third Country Nationals who are Long-Term Residents in a EU Member State have the Equal Right to Social Assistance as EU Citizens

It was recently decided by the Court of Justice of the EU in the case of Servet Kamberaj v Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano that EU member state’s are prohibited from implementing legislation which treats third-country nationals who are long-term residents different from EU citizens in relation to the allocation of funds for housing benefit.

The facts of the case are as follows. Mr Kamberaj is an Albanian national who has resided in Italy since 1994. He received housing benefit in Italy from 1998 to 2008 as a holder of a residence permit. This housing benefit was administered by firstly being allocated to EU citizens and then secondly awarded to third country nationals who have lawfully resided in the state for at least five years and worked there for at least three years. However, in 2009 a different method was put in place to allocate funds. The Social Housing Institute of Bolzano then rejected Mr Kameraj’s application under this new method on the grounds that the benefit intended for third country nationals had been exhausted.

Mr Kameraj’s brought a case on the grounds that this refusal amounted to discrimination contrary to Directive 2003/109/EC in relation to third country nationals who are long-term residents. The question of whether this method of allocating housing benefits was discriminatory was then referred to the Court of Justice of the EU.

The court was of the view that this method of allocation would disadvantage third country nationals in being allocated a smaller budget even though they have the same economic needs as those of an EU citizen. The court considered the scope of the directive in relation to social security, assistance and protection. The court found that these aspects of the law fell within the scope of member states to determine and they are permitted to limit the application of equal treatment in respect of social assistance to core benefits. Core benefits must be provided equally to those resident in the state including third country nationals who are long-term residents. The directive does not contain an exhaustive list of core benefits. Therefore housing benefit falls within this list as it relates to the basic need of the individual to accommodation and equal treatment must be applied here.

The right of third country nationals to equal treatment is a general rule and any derogation must be interpreted strictly. The scope of the term core benefits must be interpreted to take into account the objective of the directive to ensure the integration of third country nationals. The Charter of Fundamental Rights must also be considered to determine the scope of core benefit. The Charter recognises such a right to housing assistance to ensure a decent existence for those who lack sufficient resources.

In light of the considerations outlined, the court concluded that EU law precludes a national or regional law which provides for different treatment for third country nationals and nationals of the member state in which they reside, in so far as the housing benefit falls within one of the three fields covered by the principle of equal treatment provided under the directive concerning third-country nationals who are long-term residents and constitutes a core benefit within the meaning of that directive, which are matters for the national court to determine.      

You can read the full judgement here http://curia.europa.eu/juris/document/document.jsf?text=&docid=121961&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1432923

Brophy Solicitors

26.04.12

Naturalization Delay

We continue to receive a large number of queries from clients regarding the on going delays in the Citizenship Section. It is very appararent that many applications submitted in 2007 continue to be undetermined. Amongst our clients in this catagory are a number of doctors, and a client working in the financial services. There is no apparent reason for the delay on the facts of their cases. Our clients are frustrated, particularly as they feel they have given a lot to this State through their professional services. 

The amount of new queries recently received on this issue warants a further posting on our blog. We think that it might be helpful for those who are stuck in this waiting game to understand the caselaw coming from the superior courts, which greatly influences the Naturalization processs.

In most applications before the Minister for Justice, a processing period of 6- 12 months would be regarded as reasonable, while a period of over 18 months would be deemed to be unreasonable and in breach of the applicant's rights. However, during 2009 and 2010, a number of cases before the High Court held that the Minister was not restricted in the time period for processing Naturalization applications because the granting of Citizenship is a special privilege granted by the State, and not comparable to other applications for residency. Thus, the applicants who took the delay cases during that period were unsuccessful. (See cases such as Nawaz v Minister for Justice, 19th July 2009, Bepo v Minister for Justice, 18th June 2009, Tabi v Minister for Justice 16th April 2010, Jiad v Minister for Justice 19th May 2010 and Abuissa v Minister for Justice,1st July 2010 ).

Since then, the Citizenship Section of the Department of Justice has relied on these High Court judgments to support their position that they are permitted to allow extremely long delays in the determinations of many applications for Naturalization. Unfortunately, Immigration lawyers were hesitant to challenge the delays by way of High Court litigation because of the risks posed to their clients becuase of these same unsuccessful High Court judgements in 2009/2010.

On the 16^th December 2011, Mr. Justice Kearns of the Supreme Court delivered a judgment which changed this position – the case is Dana Salman v Minister for Justice and Equality. The case involved a hearing to establish liability for costs in respect of one of the previous High Court Naturalization delay cases. The Minister’s delay in determining Mr Salman’s application for naturalization was 3 years and 9 months at the time of issuing of High Court proceedings. Mr. Justice Kearns found that there was no evidence before the Supreme Court of any system in place for dealing fairly with applications for certificates of naturalisation. In particular, the Minister did not indicate any specific reasons for the delay and refused to explain the extended period of delay past the average time put forward by the department (24 months). Mr. Justice Kearns held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded. (Please see our previous blog post of December 2011to read further about this judgement).

Since the Salman judgement, a number of new Naturalization delay cases have recently been issued in the High Court, where the delay is in the region of the Salman case – 3 and ½ years. The High Court is granting permission to take a full case against the Department of Justice where there is substantial delay of this kind. It remains to be seen if one of these more recent cases will proceed to full hearing, and perhaps set a new precedent in light of the Salman case.

We will keep updating you as further developements occur.

Brophy Solicitors

Political Support for Undocumented Migrants in Ireland.

The annual Labour Party conference took place on the 15^th of April 2012. At this conference the Labour party put forward a motion to support the regularisation of undocumented migrants in Ireland. The conference noted that there is an estimated 30,000 undocumented migrants residing in Ireland today and recognised the undue strain and hardship this caused to these individuals and their families who remain in constant fear of deportation. Many of these families live in poverty as they cannot benefit from basic social services such as health and education. The conference also recognised the isolation they experience within the state, as they are unable to return home to visit family members and friends in their home country, as they fear they risk being unable to return to the state afterwards.

The conference proposed putting in place an Earned Regularisation Scheme. This would involve undocumented peoples being given an opportunity to earn permanent residency over time by adhering to a specified criteria such as working and paying taxes. This would confer benefits both on state and on the undocumented persons by encouraging economic and social integration.            

The Migrants Rights Centre Ireland welcomed this motion by the Labour Party. "This is a very significant step in realising the human rights and dignity of undocumented men, women and children living in Ireland. The passing of this motion recognises that undocumented people are rooted within our communities and demonstrates a commitment to protecting the most vulnerable" said Edel McGinley of the MRCI.

Brophy Solicitors welcomes any initiative moving to recognise the rights of the undocumented worker in Ireland and we appreciate and praise the commitment of the MRCI towards the protection of undocumented workers in the State.

Brophy Solicitors

18.04.12

PERMANENT RESIDENCE – THE ZIOLKOWSKI/SZEJA CASES

Permanent residence is to be granted to EU citizens after five years of continuous legal residence in another member state. The status of permanent residence ensures that citizens no longer have to comply with conditions that must be met by those without that permanent residence status – such as the on going requirement to be economically active or sufficient resources with adequate medical insurance. Furthermore, permanent residence gives Union citizens increased protection from expulsion.

We are working on many applications for permanent residence for our clients, and we watch the developing case law from the Court of Justice with much interest. From time to time, we like to bring some of the more helpful case law to our reader’s attention. One such judgement was delivered by the Grand Chamber of the Court of Justice the 21^st of December 2011 - in the cases of Ziolkowski and Szeja (Joined Cases C‑424/10 and C‑425/10), both cases referred from Land Berlin.

The Court of Justice was asked to consider the cases of two Polish nationals who had been refused applications for Permanent Residence pursuant to the Citizenship Directive (2004/38/EC), and were further refused on going permission to remain on the basis that the applicants were not economically active/self sufficient with medical insurance.

The first question referred to the Court of Justice was as follows;

Whether Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident in the territory of the host Member State for more than five years on the sole basis of the national law of that Member State must be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not fulfil the conditions laid down in Article 7(1) of the directive.

Following an analysis of other provisions in the Directive, the Court of Justice summarized the three stages of EU Law

39        First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State.

40      Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.

41      Third, it is apparent from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State.

At paragraph 46, the Court concluded that legal residence after the first three month period requires residence in compliance with the conditions contained in the Directive, and particularly Article 7 (1) of the Directive, that is either as a worker/self employed person/student/financially self sufficient person (with health insurance). On the fulfilment of five years in conformity with these conditions, the union citizen acquires the right of permanent residence, and should be subject to no further conditions.

However, the Court emphasized that a Union citizen who has resided for five years in the host Member State and during that time was not an economically active person, cannot presume eligibility for permanent residence.

In the cases referred to the Court, it was accepted that the applicants had never satisfied the conditions laid down in Article 7(1) of Directive 2004/38, and therefore were not entitled to permanent residence.

In answering the second question the Court found as follows;

“periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.”

Brophy Solicitors

12.04.12