Tuesday, February 26, 2013

Developments in Family Reunification for Refugees - Abdulaziz Ali Mohamed v Minister for Justice and Equality

Failure of the Minster for Justice to establish ‘an objective yardstick’ in relation to establishing economic dependency of family members, led to the quashing of a refusal of Family Reunification in the recent decision in the case of  Abdulaziz Ali Mohamed v Minister for Equality and Justice, delivered on the 14th February 2013.


The Applicant arrived in Ireland as an unaccompanied minor seeking asylum from Somalia. He was declared a refugee on 19th October 2007. This case concerned his application for family reunification with his Mother and four siblings under s.18 (4) of the Refugee Act 1996. The  application was refused on the basis that he had failed to establish that his family were ‘dependent’ on him in the narrow sense of being financially dependent, as it was held the financial support being provided by the applicant did not sufficiently meet the requirements of s. 18 (4).


The Court considered that the Minister must identify ‘some objective yardstick by which dependency can be assessed’. It is inadequate to speculate such a standard in relation to Irish norms. As held in the recent judgment of Ducale & v. The Minister [2013] IEHC 25, ‘financial dependency must be seen as a flexible state of affairs’, of which ‘much must depend on what the contribution provides when received in the hands of the recipient.’ Therefore the Commissioner must endeavour to obtain objective information in order to set out a rational basis for such a finding; no such endeavours were noted in Ducale or the present case.
This decision by Clarke J relies on the decisions of Hogan J in R.X. & Others v. The Minister [2010] IEHC 466, and Cooke J in Hassan Sheikh Ali v. The Minister [2011] IEHC 115, citing that the second most common reason for refusal by the FRU section, that is the refugee’s personal circumstances and prospects in Ireland are such that he/she cannot maintain family members in the State, is in fact an invalid consideration in relation to the assessment of dependency (though potentially relevant to the exercise of discretion should dependency be established).
Clarke J in her conclusion affirmed the need for guidelines in relation to this criterion to be outlined, in order to provide clarity and transparency within the currently ambiguous family reunification process. In her conclusion she held:
 It is not for this Court to set down guidelines as to the exercise of Ministerial discretion under s. 18(4) but a system must, sooner rather than later, stop the haemorrhage of scarce resources in defending flawed FRU decisions and instead ensure that vulnerable refugees do not endlessly pursue futile applications, thus depleting their own financial and emotion reserves. If refugees were better informed on what constitutes dependency and that conditions are de facto applied to family reunification applications, their attentions might be better directed towards obtaining language skills, training, qualifications, work experience and ultimately employment in Ireland before applying again for family reunification.’ [paragraph 28]
From this decision, Ms Justice Clarke makes her opinion clear that:
·   The Office of the Refugee Applications Commissioner must attempt to investigate such cases more thoroughly, in order to provide the Court with a rational basis for a finding such as in the case at hand, entail that the ‘dependency’ is not of an adequate standard to satisfy s. 18 (4).
·   A system needs to be adopted to provide a level of guidance in respect to such applications.
We would submit that many of the Minister’s decisions to refuse family reunification to refugees under Section 18 (4) of the Refugee Act 1996 are flawed, as most turn on the point of dependency. If the Minister does not set down clear guidelines as to what constitutes dependency, applicants are denied a fair procedure and effective remedy. It is of great concern to our office to see the inconsistent decisions made in respect of our client’s applications under Section 18 (4). We call on the Minister to follow through on Ms Justice Clarke’s recommendations, and provide a clear and transparent determination process for refugee family reunification applicants. 

Brophy Solicitors
26.02.13

Thursday, February 21, 2013

RESIDENCE PERMISSION POST SULAIMON



The Supreme Court judgement in the case of Sulaimon v Minister for Justice Equality and Law Reform, [2012] IESC 63 (2012), delivered on the 21st December 2012, has created much needed clarity in the Minister’s administrative practice of issuing residence permission to non nationals in the State.

The Supreme Court upheld the High Court’s finding which confirmed that the Mr Sulaimon’s periods of residency in the State were reckonable for Naturalization purposes despite that he was not registered with the GNIB for a short period. This conclusion was reached on the logical basis that the Minister for Justice had issued a letter to Mr Sulaimon granting him permission to remain, and therefore the Supreme Court judges deemed that he was at all times legally resident during the permitted period stated in that letter.   While this seems to be quiet an obvious finding, in fact, it was not so obvious because the Minister of Justice had always argued that Mr Sulaimon’s lawful residence did not commence until the subsequent date on which he registered at the GNIB  - thus having the very significant consequence that he was three days short of the required reckonable residence period for his daughter to be entitled to Irish citizenship by birth.

The Supreme Court judges fully dismissed the Minister’s arguments out of hand. The judges confirmed that the Mr Sulaimon’s first permission was operative from when he received the letter indicating that the Minister had granted him permission to reside. They indicated that this was the only logical conclusion given the wording of Section 9 (1) (a) of the Immigration Act 2004  -

“A register of non nationals who have permission to be in the State shall be established and maintained by registration officers in such a manner as the Minister may direct”

Therefore, a person must already have permission to remain in order to be registered on the Register of Non Nationals by the Immigration officers.

The Supreme Court emphasized that the granting of permission and registration are two separate acts, distinct from each other.  Thus, the letter from the Minister is the grant of permission and the GNIB’s role is to provide the documents evidencing the registration of such permission.

The effect of the Sulaimon case was that the Department of Justice subsequently stopped issuing residence permission letters, in order to reassess their administrative system. Many of our clients have been left undocumented as a result.

Today, we have received the Minster’s new wording in respect of the granting of residence permission in light of the Sulaimon case. The letter was issued to a client of our office who was today granted a three year stamp 4 permission to remain on the basis that he is the de facto father of an Irish citizen child (Congratulations to our client!). The decision letter states that the Minister has granted the applicant residence permission from the date of the letter. It is stated that the residence permission is conditional on a number of factors (which will depend on what basis the residence permission is granted). The letter states that the applicant is required by law (Section 9 (2)(a) of the Immigration Act 2004) to register this permission at his local Immigration Registration Office as soon as possible. The letter states that a failure to register is an offence, and may in itself constitute a ground for revocation of the residence permission.  The letter states that the Immigration Officer will register and issue the applicant with a Certificate of Registration provided they are satisfied the applicant has met the necessary requirements and paid the appropriate fee.  The letter states that the Certificate of Registration, together with the letter granting permission to remain, will entitle the applicant to work without the need for a work permit. Finally, it is stated that the applicant should apply to his local District Headquarters Station for renewal of the residence permission two weeks in advance of the expiration date. 

The newly worded letter makes it clear the legal residence permission now commences at the date of the decision letter. However, on the renewal of this residence permission, the Minister is delegating his power to the GNIB, who will issue the renewed residence permission on behalf of the Minister. Therefore, at the renewal stage, reckonable residence will commence at the date of registration. To ensure no gap occurs in ones continuous reckonable residence when renewing permission to remain, (a matter very relevant to eligibility for Naturalization), it is essential to ensure that registration occurs prior to the expiry of the residence permission.

Brophy Solicitors
21.02.13




Tenth Anniversary of the Dublin II Convention



February 18th was the tenth anniversary of the Dublin II Convention, that is, the EU regulation which identified which state is responsible for determining asylum. It allows a state to return a refugee applicant to another EU country with which they have a connection, no matter how tenuous and regardless of their reason for applying for asylum in Ireland.

 A European Comparative Report has been published entitled, ‘Dublin II Regulation; Lives on Hold’. It is described as a response to significant developments in the area within which the Dublin Convention applies; in 2011, seminal judgments from both the European Court of Human Rights and the Court of Justice of the EU changed the legal framework within this landscape. EU institutions have also recently reached a political agreement on a redraft Dublin ‘III’ Regulation, which maintains the underlying principles of the Dublin system, whilst introducing substantive reforms to the Dublin system, aiming to increase efficiency whilst respecting the fundamental rights of those subject to it. This was a necessary report; comprehensive information on the technical application of the Dublin II Regulation in a large number of Member States has not been gathered since 2006 – very alarming in consideration of the fact that this is a constantly developing area of law.

The Report questions the reasoning behind the Dublin regulations, a system perceived as frequently failing to achieve its objective of identifying a Member State responsible for the examination of an asylum claim. It finds that a harmonised application of the Dublin Regulation is not realistic; there are vast disparities between the methods of application of the binding criteria within Member States. Asylum seekers under the procedure are often subject to less than adequate reception conditions in Member States frequently resorting to the use of detention to secure Dublin transfers. Cooperation between member States is inconsistent, leading to lengthy delays in identifying a responsible Member State, or even no Member State, leading to a situation of ‘asylum seekers in orbit’. Readmission agreements are sometimes implemented by Member States in a manner that results in evading obligations under the Dublin Regulation and under international human rights law, most notably the fundamental right to asylum.

Improvements in the application of the Dublin Regulation alone will not suffice; as long as there is an ‘asylum lottery’ in Europe, the system will continue to create hardship for asylum seekers. The report calls for a harmonised application of EU protection standards, which meet international and regional protection obligations. The Report asserts that the solution ultimately lies in replacing the Dublin Regulation with an alternative system that ensures genuine responsibility sharing and takes into account meaningful connections between asylum seekers and Member States.

For access to the report:

Brophy Solicitors 
20.02.13

Tuesday, February 12, 2013

Increase in EU funding to help countries cope with migration flows



Although the movements of persons into, out of and within each EU State vary, each society shares similar migration challenges and opportunities. The EU is an area without internal borders, therefore migration bears great significance. MEPs voted on 6 February to increase EU money to help these countries cope with migration flows. Overcrowded refugee centres lacking even basic supplies have become a more frequent sight in many EU border-states in the wake of the crisis. The European Parliament adopted crucial proposals that enable an increased co-financing rate for Member States subject to financial support on actions concerning the management of migration flows (European Refugee Fund, the European Return Fund and the European Fund for the Integration of Third-Country Nationals and External Borders Fund).

The proposal:

·         Covers 4 funds making up "Solidarity and management of migratory flows" framework: European Refugee Fund, European Return Fund, European Fund for Integration of third-country nationals and External Borders Fund.

·         Increased co-financing of the migration-related funds for member states included in the financial support mechanisms.

·         Co-financing (part financed by the EU) to increase 20 percentage points to 70%. For countries covered by the cohesion fund the increased rate would be maximum 95%.

For further information, the following link provides access to an interview with Finnish Liberal MEP Nils Torvalds, who is responsible for steering the plans through Parliament: http://www.europarl.europa.eu/news/en/headlines/content/20130201STO05566/html/More-funding-for-refugees-The-way-we-handle-asylum-seekers-is-unacceptable

Brophy Solicitors 
12.02.13 

Thursday, February 7, 2013

H.I.D., B.A. v Refugee Applications Commissioner & others


The European court of Justice recently did not uphold a case for asylum brought on the basis of the following arguments: 

The Ministerial Directive of 2003 which sought to give priority to asylum applications from Nigerian nationals, (later revoked in 2010). They contended  this was  incompatible with Article 23(3) and (4) of Directive 2005/85, which contains an exhaustive list of circumstances in which an accelerated procedure may be used and does not include either prioritising or accelerating the examination of applications made by one group of nationals by reference to their nationality. In addition it was submitted this infringes also the prohibition of discrimination on basis of nationality.

The possibility of lodging an appeal before the Refugee Appeals Tribunal against the ORAC report may not comply with the obligation set out in Article 39 of Directive 2005/85 to guarantee ‘the right to an effective remedy before a court or tribunal’. It was submitted that the Refugee Appeals Tribunal is not ‘a court or tribunal’ within the meaning of Article 267 TFEU.


Basic facts of the case:

In each of the two cases in the main proceedings, an asylum application was filed in Ireland by a Nigerian national who had entered Irish territory in 2008. In the case of Ms D., the ORAC dismissed the asylum application in its report dated 15 August 2008 pursuant to section 13 of the Refugee Act. In the case of Mr A., the ORAC, in its report dated 25 August 2008, issued a negative recommendation in respect of the application of that Nigerian national, which was confirmed on appeal by the Refugee Appeals Tribunal by a decision of 25 November 2008. 


The findings of the case consisted of the following:

It follows from the foregoing that Article 23(3) and (4) of Council Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.



It follows that the Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law and rules on the evidence submitted to it, in relation to which it enjoys discretion. It must be concluded that the criterion of independence is satisfied by the Irish system for granting and withdrawing refugee status and that that system must therefore be regarded as respecting the right to an effective remedy. Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).



Brophy Solicitors
06.02.13