World Refugee Day

Today we empathise with the plight of millions of refugees across the world, the majority of whom reside in conditions of destitution in the developing world. We also take this opportunity to remember that the asylum procedures and plight of refugees in our own country are far from perfect.

As Sophie Magennis of UNHCR argues in her opinion piece  in the Irish Times today, Ireland must introduce a single decision-making procedure for asylum applicants. This will go a long way to reduce the currently intolerable delays and hardship experienced by applicants.

Ireland is unique across Europe for having a two step administrative procedure to the determination of claims for protection. Firstly the asylum application is determined, and only after this is determined, can an application for subsidiary protection be made and decided upon. Such a two stage process creates unacceptable delays for vulnerable applicants. Asylum seekers have to reside in ‘direct provision’ accommodation for up to three or four years while their applications are being considered. It also creates a considerable expense for the State since applicants are forbidden from seeking employment until their applications are decided and therefore rely on very minimal financial support from the State while they wait.

We have clients who have waited upwards of six years to have their claims finally determined. Several of these are from counties such as Somalia, where there is widespread conflict and a pressing need for the applicant to be able to live in safety and security.  Such delays should not be tolerated. They create unnecessary hardship for the applicants and wasteful expense to the State. A ‘single procedure’, as advocated for by UNHCR and the IrishRefugee Council , would go a long way to resolve matters and ensure that the decision-making process is more streamlined, efficient and humane.

Brophy Solicitors

20.06.12  

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12

European Commission Report on Immigration and Asylum

The European Commission last week published its annual report  into immigration and asylum in the EU. This is the third year the Commission has reported on this area, responding to a request from the European Council to track the main developments at EU and national levels.

To be welcomed are the positive public attitudes towards the protection of asylum seekers and internal migration within the EU and the overall conclusion of the report that migration is essential for the enhancement of the EU, despite current economic recessionary pressures.

With respect of asylum, in the year 2011, the EU experienced an increase of 16.2% in asylum applications. The report notes that this increase reflected the dramatic events of the Arab Spring. In terms of public attitudes towards those seeking asylum, a sizeable 80% of those polled believe that EU Member States should offer protection and asylum to those in need.

The report identifies the achievement of a Common European Asylum System in 2012 as a key aim of the EU. However, to the outside observer, conflicting political priorities and standards across EU Member States appear to make fulfilment of that goal a long way off. Indeed, a recent opinion piece in the Irish Times by Sue Conlon of the Irish Refugee Council notes the serious shortcomings and disparities in our own asylum appeals system.

With respect of migration within the EU, 67% of those polled for the report that travelling within the EU without internal border controls is important to them. The report highlights that Schengen, as an area without internal border controls, is one of the principal pillars of the EU and has facilitated travel for over 400 million Europeans in 26 countries.

The report is careful to place the EU's migratory situation in the wider global context, noting that just 9.4% (around 20.2 million) of the world's migrants are third-country nationals residing in the EU.

Overall, the report reflects our own view that migration can be an enriching experience for EU Member States. Indeed, the report found that public attitudes towards migration and asylum are generally positive. As the report concludes: “Migration is and will continue to be an essential enhancement for the EU, not only in economic terms, but also in respect to the social and cultural aspects of our societies. Understandably, it has also contributed to certain perceptions which need to be aired through open and balanced debates, not dominated solely by anti-immigration rhetoric. Whilst the downsides of migration are often widely reported, one should not forget the positive contributions that migration brings and will need to bring in order for the EU to grow and continue to thrive.”

Brophy Solicitors

03.06.12