Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

M.T.T.K (Democratic Republic of Congo) v Refugee Appeals Tribunal & Ors [2012 IEHC 155]

This case concerned an application for judicial review in respect of a decision by the Refugee Appeals Tribunal, affirming a recommendation by ORAC, not to grant the applicant refugee status.

The applicant claims to be a national of the Democratic Republic of Congo. He applied for asylum in February 2006 based on his fear of persecution arising from his race, political opinion and membership of a social group. He alleged that he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having Rwandan connections. The applicant claimed he was jailed and tortured by the DRC authorities in 2004 for purportedly supporting the Rwandan Government. The applicant escaped to Rwanda but was arrested for having no documents and was detained until January 2006. He then travelled to Ireland where the ORAC refused him refugee status in December 2006 and the RAT rejected his appeal as they did not believe his narrative.

Hogan J granted leave on a number of grounds that centred around three issues:

     (1) Risk of persecution based on ethnic origin or perceived connections to Rwanda.

It was clear to the tribunal member that the applicants alleged ethnicity was a distinct and separate point warranting individual consideration. The tribunal member failed to weigh the merits of the claim and the applicant’s lack of credibility did not justify this failure.  An ambiguity does not suffice as evidence of acceptance of ethnicity or Rwandan affiliation.  However, the court went onto conclude that in any case this matter ought to have been considered by the RAT and their failure to do so meant the decision could not stand.

  

     (2) The risk arising to the applicant by virtue of his position as a failed asylum seeker.

The High Court held that the RAT failed to consider this issue. It was expressed in previous case law that failed asylum seekers are not members of a social group and so particularly cogent evidence is required to quash an RAT decision on this issue. The court considered a number of documents in examining the credibility of the applicant’s evidence. Although some documents appeared one-sided and unsubstantiated, a UNHCR article did state that failed asylum seekers are at risk upon their return to DRC by virtue of their ethnicity. The failure of the RAT to adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining to examine the consequences of being returned to the DRC as a failed asylum seeker was of such a nature to warrant setting aside the decision in this case.

    (3) Benefit the applicant is entitled  to derive from the South African immigration system by virtue of his marriage to a citizen of that country

The High Court agreed wit the tribunal that it is questionable that the applicant never attempted to seek asylum in South Africa, given his marital connections to that country. The court held that the tribunal member went far beyond the question of the applicant’s credibility when he made a number of assumptions about South African immigration law, without supporting these conclusions by reference to the law or policy of South Africa. The applicant may be entitled to such benefit but there is nothing in this decision to support this proposition nor was it put to the applicant. The court therefore cannot presume to rely on this decision and so the conclusion was unreasonably made.

On the basis of these three grounds the High Court granted the applicant an order of certiorari quashing the decision of the RAT, remitted the matter for rehearing and to hear submissions in relation to an injunction restraining the respondent from denying the applicant refugee status and deporting him.     

Brophy Solicitors

30.05.12  

Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

Case Study: Sivsivadze & Ors v Minister for Justice and Equality & Ors [2012] IEHC 137

The applicants in these judicial review proceedings sought to challenge a decision by the Minster to refuse to revoke a deportation order made in respect of the fourth named applicant, Davit Arabuli.

The principal ground for this application is that s 3 of the Immigration Act 1999 is unconstitutional as it imposes a lifelong ban on a person subject to a deportation order, which amounts to disproportionate interference with the applicant's right to family life under article 41 of the Constitution. The constitutionality of s 3 has never been challenged before. The applicants also sought a declaration of incompatibility pursuant to s 5(2) of the European Convention of Human Rights in that allowing for a deportation order of indefinite duration violates the applicants right to family life under article 8 of the Convention.

The fourth named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who used the alias Datia Toidze, was refused asylum and a deportation order was issued in respect of him in December 2001. He failed to report to the GNIB in respect of the order and was classified as an evader. Mr Arabuli managed to remain present in the state until November 2011. In the meantime Mr Arabuli began a romantic relationship with first named applicant in 2003. Their first child was born to them in April 2005 and their second child was born in August 2009. They married in July 2009. Their children are not classified as Irish citizens.

Mr Arabuli made a number of applications to revoke his deportation order during this time but the deportation order was affirmed. In October 2011 the applicant was arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli admitted that the name Toidze that he had been consistently using throughout his time within the state was simply an alias. The applicant was deported in November 2011.

Under s 3 if a deportation order is made, it must be for an indefinite duration save that the Minister can revoke the order pursuant to s 3(11) at any time. The real question is whether the existence of a sanction that is potentially life long in duration is essential in circumstances where the applicants have real and substantial ties with the state

The European Court of Human Rights regards deportation orders of unlimited duration as raising serious Article 8 issues. The grant of humanitarian leave to Ms Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to go back to Georgia. The Minister’s decision acknowledged that implementing the deportation order would not be in the best interests of the two children, but failed to expressly weigh it in the balance. The High Court noted previous decisions in which it was stated that such an order of unlimited duration was an overly rigorous measure.

Overall the High Court found that the applicant made out substantial grounds that the application of a deportation order of potentially indefinite duration would infringe Article 8 ECHR, especially having regard to the circumstances of this case.

On the constitutional question, the court applied the three-pronged test of proportionality propounded by Costello J in Heaney v Ireland. Firstly, legislation that provides for the deportation of persons who have abused immigration laws through deception is connected to important state interests. Secondly, while the deportation order did impair the Article 41 rights of the other family members, it is recognised that it is not possible to have effective control of immigration without the sanction of deportation. The third limb requires the court to consider whether the effect on rights is proportionate to the objective. The question is whether the states interests in effective immigration law requires that a deportation order have indefinite effect.

The High Court found that the applicants raised substantial grounds in respect of both the Constitutional and ECHR grounds in the manner indicated and granted the applicants leave.   

Brophy Solicitors

23.05.12 

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

Unsuccessful Citizenship Application Relying on Zambrano and Common Travel Scheme

Case Study: Jun Yang Zou v Secretary of State for the Home Department [2012] CSOH 78

This case involved the judicial review of a decision of the Secretary of State to refuse the applicant a residence card. The applicant also sought a declaration that she has a right of residence in the UK. 

The applicant, a Chinese national, arrived in the UK in December 1998 with leave to enter as a student until June 2005. The applicant married her partner who arrived in the UK with no valid leave to enter in 2003 and two children were born to them in 2003 and 2007. In May 2011 the applicant applied for a residency card from the UK Border Agency that was refused in September 2011. The applicant now seeks to challenge this refusal.

The basis of the applicant’s claim is that her first son was born in Northern Ireland and so should be viewed as both an Irish and European Union citizen. The applicant’s son had never been to Ireland, but did possess an Irish passport and so the applicant claimed he should be viewed as a EU citizen. It was acknowledged that neither the applicant nor her husband had a right of residence in the UK and that neither of her children acquired British citizenship by virtue of being born there

The applicant relied on the Zambrano decision in claiming that in order for her son to continue to obtain the benefits of the European Union it was necessary for residence and working rights to be granted to the family. The ECJ decided in Zambrano that Article 20 of the TFEU conferred the status of EU citizen on every person holding the nationality of a member state. In distinction with Zambrano, the applicant’s child was not a national of the country for which a right of residence was being made.

The respondent submitted that the Secretary of State’s decision was a correct interpretation of the case. This decision was made on the basis that the applicant’s circumstances did not fall within the scope of Zambrano as the applicant failed to supply evidence that the dependant national was a British citizen. The Dereci judgement was also referred to in that it would be open to the applicant to seek to claim the present rights in the Republic of Ireland as her son’s chosen state of origin.

The applicant also relied on the common travel area arrangements between the UK and the Republic of Ireland under s 1(3) of the Immigration Act in claiming that Irish citizens have a de facto right to reside in the UK and so European citizenship rights can be extended to the member state where they have a de facto right of residence.

The respondent submitted that the terms of the Immigration Act did not apply to the applicant’s son as he had not arrived in the UK from the Republic of Ireland and so was not in a different position to any other citizen of another member state. Even if the common travel scheme rights did apply to the petitioner’s son, these rights arose from domestic legislation, whereas European Citizenship rights arose from the treaty.

The Court of Session accepted that the circumstances in this case differed from those in Zambrano as the applicant’s son was not a UK national. The case therefore has no application to the petitioner’s circumstances. It was noted in Zambrano that the conditions for the acquisition of nationality are for the member state in question to lay down. It is up to the Republic of Ireland to decide whether to grant the applicant’s son citizenship, despite the fact that neither he nor his family has ever visited the country. Even if the applicants son is entitled to EU citizenship by virtue of the same decision, he has not acquired a right of residence in the UK that flows from EU citizenship. The common travel arrangements have no application to the applicant’s son. Accordingly he is neither a UK national nor someone with an identifiable right of residence in this country. The court upheld the decision arrived at by the Secretary of State and refused the applicant’s petition.   

Brophy Solicitors

21.05.12          

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors

18.05.12

                 

Free Movement after Zambrano, McCarthy and Dereci

Zambrano

The judgement of the European Court of Justice in the case of Zambrano v Office national de l’emploi (C-34/09) concerned the right of Columbian citizens, Mr Zambrano and his wife, to reside in Belgium on account of the Belgian nationality of their two younger children. Their two children acquired Belgian nationality after being born there after their parents were granted a form of humanitarian protection to reside there. The parents then lost their protective status in Belgium.

The case centred around their two children who had not exercised their rights of free movement as EU nationals but relied purely on their EU citizenship in an internal situation. The court held that EU citizen children derive the rights under Article 20 of the TFEU to live in Belgium, to their third country national parents to live with them and the right of their parents to a work permit to support their children. This was based on the fact that if their parents were not allowed to reside the children, they would be denied their EU rights in being forced to leave the member state.

The UKBA adopted quite a strict interpretation of Zambrano and focussed on the notion of dependency. They adopted the stance that the judgement creates a right to reside and work for an applicant in the following circumstances;

The (i) sole carer of a (ii)dependent   (iii)UK citizen child within the UK, (iv)where that carer has no other right of residence in the UK.

In cases where there is another parent, guardian or carer upon whom the child is dependent then the UKBA say Zambrano cannot apply as the removal of the third country national would not oblige the child to leave the EU as an alternative carer is available.

This is an argument which has surfaced in Ireland also, and may be open to challenge on the basis that it fails to consider the rights of a child to the company of both parents, as protected by Article 24 of the Charter of Fundamental Rights.

The most notable outcome of this case is that there does not have to be any movement between EU member states and so it concerns internal situations within the Member States.

  

McCarthy

Following on from the broad interpretation of Article 20 in the Zambrano case is the decision of the ECJ in McCarthy v SSHD. The applicant was a dual British and Irish citizen who was born and always lived in the UK. She never worked and received state benefits. In 2002 she married a Jamaican citizen who had no valid leave to remain in the state. After her marriage she acquired an Irish passport and sought to assert her and her husband’s right to free movement within the EU. 

The two questions referred to the ECJ were whether a dual British/Irish citizen who lived her whole life in the UK is a beneficiary of Directive 2004/38. The second question was where such a person has not satisfied the relevant part of the directive whether they could still be residing legally under Article 16 (i.e to have established a right to permanent residence).

The ECJ found that Mrs McCarthy was not a beneficiary under Article 3 of the Directive because she had never moved to another member state nor could her husband derive similar rights. The ECJ declined to answer the second question. The court distinguished this case from Zambrano as the national measures taken against Mrs McCarthy had not deprived her of the genuine enjoyment of her EU rights. The denial of access to her EU rights as an adult did not have the same effect as a similar measure did on the Zambrano children as it did not oblige her to leave EU territory as a negative decision would have done in Zambrano. In summary the court found that McCarthy’s case fell outside EU law and was a matter of purely internal law within the UK.

The UKBA issued internal guidance indicating that the ECJ determined in McCarthy that a person holding the nationality of the host state who has never exercised their right to free movement cannot benefit from the directive, regardless of whether they have dual nationality. This also means that family members are unable to derive a right of residence under the directive on the basis of their relationship to a national citizen. The intention is to amend the regulations to reflect the terms of the McCarthy judgement, but until then those who hold dual nationality must be allowed to rely on this to benefit from the regulations. The UKBA’s intention is therefore to amend the Immigration Regulations to reflect the position in McCarthy, until then all will be processed as before.

Despite UKBA guidance, not all embassies are following this guidance consistently and there have been a number of refusals based on the McCarthy decision that have all been successfully challenged. Until the regulations are amended dual British/Irish nationals should continue to benefit under EU law. It is arguable that McCarthy should be limited to its facts as Mrs McCarthy had never worked or been self-sufficient and so could not rely on her free movement rights. It is arguable that dual British/Irish nationals residing in Northern Ireland can be distinguished from Mrs McCarthy if they are workers, self-employed or self-sufficient. This approach was adopted in the recent case of MAH Canada where the court stated that it appears that what defeated Mrs McCarthy’s application was that she was never a worker within the meaning of EU law and should not have exercised her treaty rights to reside in another state. It appears that neither the UKBA nor the courts are completely clear of which approach to adopt.

Dereci

As the national courts of the various member states are struggling to reconcile the decisions of Zambrano and McCarthy, much focus has been placed on the Dereci case. While this case did provide some clarity it still left many issues un-addressed. In Dereci, the Court of Justice found that as long as an EU citizen can move from their member state of origin to another member state and exercise free movement and residence rights, they can enjoy family reunion. Otherwise the only way an EU citizen can enjoy family reunion with a third country national is if they simply cannot move and the only tangible example of this so far is Zambrano. If the family cannot move to another member state then Article 7 or Article 8 must be applied. 

Dereci limits Zambrano and sets it out as an exceptional case limited to its particular circumstances. It also appears to prevent adult applicants relying on Zambrano as in theory an adult couple can always move within the EU. However, there may be circumstances where they cannot move and so again they appear to be exceptional cases. The non-migrant EU citizen would need to produce before her national court compelling evidence that her situation would only be addressed with the presence of the third country national family member and failing this they would be forced to leave the EU.

We will have to await further guidance from the courts before we can fully understand the ramifications of these recent European decisions and how they will impact on EU nationals and their families.              

 

ZAMBRANO APPLICATIONS– IRISH CHILD NOT ORDINARILY RESIDENT IN THE STATE

We have noticed some inconsistent decisions issued from the Department of Justice and the various Embassies in respect of residence/visa applications for the parents of Irish citizen children, where the Irish child may not be ordinarily resident in the State.

The Department takes the view the Zambrano judgement is applicable to situations only where the Irish citizen child is ordinarily resident in the State. It is stated on the INIS website as follows;

"If an Irish born citizen child has not been ordinarily resident in Ireland then his/her parent(s) cannot rely on the Zambrano Judgment as a basis for securing a right of residence in Ireland."

This view is certainly open to challenge if, on the basis of the Zambrano, Dereci, Chen and many other Court of Justice cases, it has been established that an EU citizen child has a right to grow up in the EU and that right must be facilitated by allowing that child’s primary carer a right of residence with the child. The rights vindicated by these judgements derive from the child’s Treaty rights as an EU citizen, and not from the judgements of the ECJ. Therefore, to require an applicant to prove their family circumstances fit exactly within the circumstances of a precedent ECJ case is unfair and  an incorrect application of EU law.

We were recently disappointed to receive negative decisions in  Zambrano-type visa applications for two Syrian nationals and their Irish citizen child to enter and reside together in the State as a family unit, and similarly in respect of a Pakistani mother and siblings of an Irish citizen child living in Pakistan.  In the refusal considerations, the Department made no reference to the  child's rights as a citizen of the EU under the TFEU and did not even mention the  Zambrano judgement in it’s very detailed analysis of the case!

Meanwhile, another client resident outside the State has recently been granted a Zambrano residence permission the basis that her Irish citizen daughter recently moved to Ireland to live with her sister.

We have also noted an increasing delay in respect of the determination of Zambrano type applications made within the State.  Intitially after the Zambrano judgement, most of our applications were determined within 3- 6 months. Now, it appears that many applicants are waiting between 6 and 12 months to obtain the decision on their application. In one particular instance, a Syrian couple has been residing in the State with two young Irish citizen children with no income.  Facing near destitution apart from some assistance they have received from relatives and other Irish nationals, the family has an application for residency pending for seven months.  Unable to return to their home in Syria, the family have been through a horrendous ordeal and requests for temporary permission to reside and work pending determination of application have been ignored.  The Minister has been put on notice as to the urgency of this case and we shall keep you updated on all developments in respect of our pending Zambrano decisions.

Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12

Appeal Granted against Deportation Order on Grounds of Failure to Properly Consider the Appellant’s Circumstances within the State

Deron Peart v Secretary of the State for the Home Department [2012] EWCA Civ 568

This case concerned an appeal against a decision to uphold a deportation order made against the applicant in December 2007. 

The appellant, a Jamaican national, came to the UK in November 1996 when he was eleven years of age on a visitor’s visa and then continued to reside in the UK illegally. His mother resided in the UK since 1994. The appellant entered and remained in education up until 2006 when he was unable to meet the costs of University. In April 2007, the appellant was sentenced to 30 months imprisonment following a plea of guilty to possession of a Class A drug with intent to supply. The appellant was subsequently subject to a deportation order. In the meantime, the appellant entered into a relationship with a UK citizen, Alexis, and their son Ashton, who is also a UK citizen, was born in 2009.

The Secretary of State refused his appeal against the deportation order in July 2009. The first-tier tribunal then allowed his appeal on the grounds that his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the ECHR. This decision was appealed against and a fresh hearing came before the Upper Tribunal, which then dismissed the appeal in 2011.

The grounds of appeal before the Court of Appeal are that the tribunal failed to consider Ashton’s best interests, failed to consider the appellants family and private life, failed to take into account important evidence and failed to consider whether the nature of the appellant’s offending was so serious as to justify his removal. Each ground was considered in turn-

(i) Failure to consider Ashton’s Best Interests-

The Judge in the Upper Tribunal (DIJ Woodcraft) was not convinced that the appellant had a close relationship with Ashton, but in order to do justice to Ashton’s position he should have considered how their relationship might develop in future if the appellant were allowed to remain. The Judge failed to consider the effect that the appellant’s removal would have on Ashton’s welfare and therefore did not give sufficient consideration as to what was in Ashton’s best interests or give his welfare the degree of importance it ought to have received.

(ii) Failure to give proper consideration to family and private life.

Although the judge examined the nature and extent of the appellant’s relationship with the members of his family, he did not draw the strands together in deciding whether his overall removal was proportionate. He also failed to make a significant assessment of his private life despite the fact that he had come to the UK when he was 11 years old and had been living in the country for 14 years. All he said was that the appellant had formed a private life of sorts during his time in the country, but that his failure to regularise his immigration status and his repeat offending outweighed his claim that his private life should be spared from interference.

(iii) Failure to Consider Relevant Evidence

The Judge rejected the appellant’s assertion that he had encountered positive people during his time in custody despite evidence from a prison officer and chaplain that he had made constructive use of his time.

A similar approach was taken to his history of offending. The appellant did have previous convictions for robbery and shoplifting but received a non-custodial sentence in each case. A sentence of 30 months imprisonment following a guilty plea was also at the lower end of the sentences for supplying class A drugs.

As to the prospects of re-offending, his probation report stated that the appellant showed clear signs of having made positive changes and assessed his likelihood of committing further offences as low. The Judge drew on a pre-sentence report but did not refer to the more recent progress report, which could be expected to provide the most reliable evidence of the appellant’s current attitude. The Judge failed to have regard to these important pieces of evidence, or if he did, he failed to properly assess their significance.

(iv) The Maslov principles

In Maslov v Austria the ECHR considered the approach taken by national authorities when considering the deportation of a foreign national on the grounds that his presence constitutes a danger to the community. The court listed a number of factors to be taken into account in assessing whether a deportation is proportionate. In the case of a settled migrant who has spent the major part of his childhood in this country only very serious reasons would justify removal, even if he has been unlawfully present. The Judge did consider some of the factors in Maslov as potentially relevant, but in deciding whether to remove the appellant he failed to have regard to important factors such as the age at which he arrived in the country, the length of his stay and the strength of his social, cultural and family ties within the country.

The Court of Appeal held that the decision of the Upper Tribunal was flawed in the respects identified to such an extent that it could not stand. The appeal was allowed and the matter remitted to the Upper Tribunal with a direction that there be a fresh hearing.  

The full text of the case can be accessed here

Brophy Solicitors

09.05.12

PARENTS OF ROMANIAN AND BULGARIAN NATIONALS WHO ARE PARENTS OF IRISH CITIZEN CHILDREN

We posted a recent blog in respect of a change of policy concerning the right to work for Romanian and Bulgarian nationals who are also parents of Irish citizen children.  As of the 28^th February 2012, such persons shall not require an employment permit to work in Ireland. 

A number of our clients who had applied for employment permits or who had applied to be registered as self-employed with the Department of Jobs, Enterprise and Innovation have received letters from that Department stating that they are entitled to work in the State without an employment permit.  The letter also states that it should be both that Romanian/Bulgarian nationals and their Irish citizen child must be resident in the State as a family unit.

We have also been advised that our applications pending with the Department of Justice and Equality in respect of Romanian/Bulgarian parents of Irish citizen children shall be determined this week and we expect a similar letter shall issue from that Department authorising our clients to work without the need to apply for a permit.

We welcome the Minister’s approach to resolving such cases, which would have no doubt ended in litigation in respect of such person’s entitlement to work in the State.  We shall advise our readers as to the Department of Justice and Equality’s precise position as soon as possible.

Brophy Solicitors

04.05.12

Case Study: Correct service of Notice of Intention to Deport

MM (Georgia) v Minister for Justice, Equality and Law Reform [2011] IEHC 529, delivered on the 19^th September 2011

The applicant in these High Court proceedings sought to challenge the validity of a deportation order made against him on the basis that there was no evidence that the applicant was ever properly served with any proposal to deport him pursuant to s 3(6) of the Immigration Act 1999.

The applicant, a Georgian national, arrived in the state at the end of 1999. The applicant’s application for asylum was refused in 2003 and he was served with notice to deport him. The applicant challenged this order resulting in a settlement under which the applicant was given permission to remain in the state until April 2010. In the meantime the applicant was convicted of theft in September 2009 and sentenced to nine months imprisonment. The central issue of the case then arose as to whether the applicant had been served with a fresh proposal to deport him on the 12^th of May 2010 whilst he was serving a sentence in Cloverhill prison. 

Section 3(6) of the 1999 Act provides that notice should be served on an individual by being delivered to them or by sending it by post or other recorded delivery service. The Minister sent the deportation letter to Cloverhill prison. The applicant maintained that he never personally received the letter. The prison authorities on the other hand gave evidence that there was a delivery docket for the letter at the prison and it was on the applicants file. The Minster was unable to show that the letter was actually delivered to the applicant in person and so failed to comply with the statutory prerequisites to validate the deportation order.

The High Court found that the Minister also failed to comply with Section 3(6)(b) under which it is necessary to show that the deportation letter was sent to the most recent address furnished by the applicant. It was established in this case that the letter was not sent to the applicant’s most recent address.

The Minster could therefore not establish that that the notice of intention to deport was ever served on the applicant in the manner required by s 3(6)(a) or s 3(6)(b). Proof of service according to the terms of these provisions is an integral feature of the entire deportation system. Given that a deportation order is of fundamental and far-reaching importance to the applicant, it is vital that there be compliance with the procedural requirements prescribed by statute. For these reasons failing to demonstrate that the applicant had been served with notice of an intention to deport in accordance with s 3(6) is so fundamental that this court could not permit any subsequent deportation order to stand. 

Brophy Solicitors

3.5.12

          

Case Study: Entitlement to citizenship upon birth of child of asylum seeker who is subsequently declared to be a refugee

B.K. (A Minor) v The Minister for Justice, Equality and Law Reform [2011] IEHC 526, delivered on the 21^st December 2011

The applicant in these High Court Judicial Review proceedings was a four-year-old girl seeking to quash a refusal by the Minster to recognise the applicant as an Irish citizen. The applicant also seeks a declaration that she is an Irish citizen and an order requiring the respondent to recognise this and to issue her with an Irish passport

The applicant’s mother, a Cameroon national, arrived in Ireland in July 2005. The Refugee Appeals Tribunal recommended that the applicant’s mother be declared a refugee. Pursuant to s 17(1)(a) of the Refugee At 1996 a declaration was signed by the respondent declaring the applicant’s mother a refugee on 12^th of February 2009. Before the applicant’s mother was declared a refugee, she gave birth to the applicant in August 2006. At the time of birth the applicants mother was residing in Ireland pursuant to s 9 of the Refugee Act 1996 allowing her to remain in the state pending determination of her application for refugee status.

The applicant’s mother now seeks to challenge the refusal of the Citizenship Division of the Department of Foreign Affairs to issue her daughter with a passport to recognise her child as an Irish citizen pursuant to s 6 of the Irish Nationality and Citizenship Act 1956. S 6(a) of this act deals with entitlement to Irish citizenship to persons born to non-nationals. An entitlement to Irish citizenship does not apply to all persons born in Ireland. One will not be entitled to citizenship in circumstances where the parent of the child has not been resident in Ireland for an aggregate period of three years out of the last four years or if one of the parents was not entitled to reside in the state due to restrictions on their period of residence.

The respondent submitted that the applicant’s mother did not have the appropriate number of years reckonable residence in the state prior to the birth of the applicant as she had only been in Ireland for over a year. The central issue for determination is whether the applicant’s mother was entitled to reside within Ireland without any restriction as of the applicant’s date of birth at a time when she was not yet a declared refugee.

The applicant contended that her mother did not have any restriction on her residence in the State given that the proper reading of s 9(2) of the Refugee Status Act 1966 meant that leave to remain in the state is without any restriction and that a restriction would only arise in respect of her mother's residence if one of the three events outlined in s 9 occurred.

The respondent submitted that not only did the applicants mother not have the appropriate years reckonable residence in Ireland prior to the birth of the applicant but that her residence was also restricted as of the applicants date of birth and remained so until she obtained a declaration of refugee status.

The Court was satisfied that a correct reading of s. 9 of the Refugee Act 1996 meant that as of the date of the applicant's birth, the applicant's mother was only entitled to remain in Ireland for the purpose of ensuring a final determination of her application for refugee status. This meant that that there was a restriction on her period of residence within the state. This restriction remained in force until the date upon which she was declared a refugee and was therefore in force as of the date of the birth of the applicant.

In the light of the above findings the Court was satisfied that the correct construction of the legislation results in a situation where the applicant's mother was a person whose right of residence within the State was restricted as of the date of birth of the applicant and that therefore the applicant does not have an entitlement to Irish citizenship.

It should be pointed out that the applicant is lawfully within the jurisdiction and will be entitled to apply for a certificate of naturalisation in her own right as and from her fifth birthday which occurs on the 30^th August, 2011.

The EU Commission Requests the UK State to comply with EU Free Movement Law

Each Member State is responsible for the implementation of EU law. Usually this requires the adoption of an implementing measure before a specified deadline, or the correct application of measures already adopted within that Member States own legal system. 

Under the Treaty on the Functioning of the European Union (Article 258) the Commission of the European Communities is responsible for ensuring that EU law is correctly applied.  When a Member State fails to comply with EU law, the Commission has powers (called action for non-compliance) to bring the infringement to an end and, where necessary, may refer a case to the European Court of Justice. The non compliance may consist either of action or omission, and it may be any authority of the State which is responsible for the infringement, including central, regional or local.

A letter of formal notice is the first stage of the Commission’s non compliance procedure, in which the Commission requests a Member State to submit its observations on an identified problem regarding the application of EU law within a given time limit. The Commission may then serve a reasoned opinion on the Member State to set out the Commission’s position on the infringement and to request the Member State to comply within a given time limit. Referral by the Commission to the Court of Justice would be the final step in holding a Member State accountable for on going breaches of EU Law.

On the 6^th  April 2012, the European Commission has served on the United Kingdom a reasoned opinion, which outlines the current breaches of EU Free Movement Law actively being pursued by the UK State. The opinion includes a formal notice that the UK has two months to mend it’s hand and comply with European Union rules on the free movement of EU citizens and their families across the EU. The breaches of EU Free Movement Law that are addressed in the Notice are summarized by the Commission as follows (See Commission's press release here );

“The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.

The United Kingdom does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.

Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.

Finally, the United Kingdom does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the United Kingdom to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.”

In comparing the position in Ireland, we would submit that this State is actively infringing the EU law rights indicated in the first, second paragraphs above. We suggests that where an individual in this State has their EU Free Movement rights breached, they should submit a written complaint to the EU Commission (contact details for the Dublin Office here) and thus similar action may be followed against this State. 

Brophy Solicitors

1.5.12