STATELESS STATUS IN IRELAND

We were pleased to see the media interest over the weekend in our landmark case concerning the first stateless declaration in Ireland;

http://www.irishtimes.com/news/social-affairs/ireland-gives-legal-status-to-first-stateless-resident-1.1742516

http://www.thejournal.ie/stateless-man-1386549-Mar2014/

We hope this case will help other persons in Ireland who are Stateless and trying to gain legal status, stateless travel documents and naturalization.

FIRST DECLARATION OF STATELESSNESS IN IRELAND

We are delighted to announce that on the 27th March 2014, the Irish Naturalization and Immigration Service, on behalf of the Minister for Justice and Equality, issued what we believe to be the first declaration of statelessness in the State. The declaration was issued to our client on foot of his pending High Court proceedings again the Minister for Justice. 

Our client is from Estonia, and is of Russian ethnicity. At the time of his birth, this area was within the territory of the USSR. In 1991, when Estonia became an independent State, his home town, with mostly Russian inhabitants, became part of the new territory of the Estonian State. The newly formed Estonian government did not issue Estonian citizenship to all residents within the territory of Estonia. Persons of Russian ethnicity, like our client, were issued with an “Alien’s Passport”, identifying their citizenship as “undefined”. 

Our client has resided in Ireland since 2002, but until now could not obtain recognition of his stateless status because no legal or administrative process has been set up to deal with such applications. This is despite Ireland’s obligations pursuant to the 1954 Convention relating to the Status of Stateless Persons, which Ireland has ratified. 

In February 2013, Brophy Solicitors submitted an application to the Minister for Justice and Equality for a Stateless Travel Document for our client, and the application was refused because he did not have a letter form the Minister confirming his stateless status in the state.. We then applied for a declaration of statelessness, and on receiving no response three months later, we issued High Court proceedings against the Minister. 

We are delighted for our client and his family that after 14 years, he has finally acquired recognition of his legal status as a stateless person, and we wish him and his family a big congratulations! 

However, we remain very concerned for the other stateless persons in Ireland who are currently left in a legal limbo. We highlight the urgent need for a legal and administrative process to be set up for the recognition of stateless persons in Ireland.

Karen Berkeley 

Brophy Solicitors

EU TREATY FREE MOVEMENT RIGHTS AND DISABILITY

We have been working on a number of cases involving recognition of the rights of residency in the State for EU citizens who are unable to work due to disabilities. Such persons are not covered by the terms of Directive 2004/38EC and the European Communities (Free Movement of Persons Regulations) (No 2) 2006. As a consequence of this, the Department of Justice has refused some of our clients a residence card for their family members, on the basis that the EU Citizen is not exercising EU Treaty rights.

We believe that such a decision is unlawful, without provision of an alternative form of indefinite permission to remain, because it discriminates against EU citizens solely on the basis of disability. It discriminates against an EU citizen with a disability who has exercised free movement in favour of those EU citizens who have exercised EU free movement to Ireland, but who are not disabled and can therefore comply with the conditions of the Directive and Regulations to acquire a permanent residence card for their family members. 

We believe that persons with disabilities are entitled to exercise free movement rights in the same way as a person without disabilities. We believe that the right to move within the EU, and to the company of one’s family members, are fundamental rights, and the State has an obligation to adhere to these rights, which derive directly from the Treaty of the Functioning of the European Union and the Charter of Fundamental Rights. 

The position of person’s with disabilities is now protected under EU law by the Convention on the Rights of Persons with Disabilities, which came into force on 3rd May 2008. Ireland signed the CRPD on 30th March 2007 and intends to ratify it.

Karen Berkeley 

Brophy Solicitors

WHEN CAN I APPLY FOR A CONTRACT SERVICE PROVIDER WORK PERMIT?

We have recently advised on a complex query in relation to contract service provider work permits. 

Our client is a foreign company who was seeking to make an application on behalf of three non-EEA nationals due to come to Ireland to complete work under a contract service provider agreement. The problem arising for our client is that while they are the employers of the non-EEA nationals, they are not party to the contract to provide services to a large Irish entity. A different foreign company was the contracting party. Our client was instead a sub-contracted third party and this presents difficulties with respect of the application for such a work permit. 

Contract service provider work permits are issued in circumstances where a foreign undertaking has won a contract to provide services to an Irish entity on a contract for services basis. The permits are designed to facilitate the transfer of non-EU employees to work on the Irish contract in Ireland provided certain criteria are met. These criteria are distinct to the criteria for a straight forward work permit and include the following requirements: 

• Employees must have worked for the foreign company for a minimum of six months prior to the application. 
• The duration of the transfer must be at least 90 days. 
• The employees should be in receipt of total remuneration of €40,000 or more, in circumstances where the employee is on a non-Irish payroll. 
• For remuneration between €30,000 and €40,000, the employees must be on an Irish payroll. 
• In the calculation of remuneration, the Basic Maintenance Allowance, per diems and housing and other benefits may be included. Each application must include a spreadsheet showing the calculation of remuneration details.
• If the occupation is one listed under the Highly Skilled Occupations List, then there will be no need to undertake any labour market needs test. The labour market needs test applies in the case of all other occupations.
• A Tripartite Agreement, between the foreign company, the employee and an Irish host entity is necessary where the employee remains on the foreign payroll.
• The Irish host company must be the applicant for the purposes of the application. 

It is essential to note that the contract for services must be a one to one contract with an Irish entity. This type of work permit will not issue in instances where work is being subcontracted to a third party and that third party is the employer of the applicant employees. In such circumstances, it will be necessary to consider other options such as an intra-company work permit application or straight-forward work permit application. 

Rebecca Keatinge

Brophy Solicitors

RESIDENCE PERMISSION FOR THE SPOUSE OF AN IRISH NATIONAL

We are working on many cases involving the ongoing fight of some Irish citizens to acquire a right of residence for their non EEA spouses. Some of these cases involve long stay visa applications for newly weds. Often they are refused on the basis that they did not have sufficient face to face meeting prior to their marriage. Frequently, this ground of refusal is relied on in respect of arranged marriages, where the Irish citizen and their spouse were not permitted to meet prior to their marriage. From our experience, if the couple arrange a number of holidays together post marriage, and evidence the genuine ongoing relationship, and there are no countervailing circumstances, the visas should be granted. 

However, the cases where the refusal is based on an event prior to marriage cause more difficulty. A common example is the often-cited ground of refusal of the poor immigration history of the visa applicant. This is more difficult to deal with as the applicant cannot undo what has already been done. 

We wish to highlight the recent High Court judgement Gory v The Minister for Justice and Equality, delivered by Mr Justice MacEochaidh on the 30th January 2014. The judgement is very helpful in reviewing the manner in which the Minster must balance the interests between the State and the Irish citizen in cases where the applicant may have a poor immigration history. 

The case concerned Mr and Mrs Gory, a Nigerian and Irish citizen and married couple who sought to challenge the Minister’s decision to refuse their application to revoke the a deportation order previously issued against Mrs Gorry prior to their marriage. The revocation application was refused on the basis of Mrs Gory’s poor immigration history. The Minster had found that there were no insurmountable obstacles to Mr Gory moving to Nigeria to live with his wife. 

Mr Justice MacEochaidh found that this was an incorrect test to apply. He referred to both Irish UK case law which had previously established that the “insurmountable obstacles” test is no longer an appropriate test to apply to family life assessments. He confirmed that the test now to be applied is the test of reasonableness – i.e. is it reasonable for the Irish citizen to leave this State in order to carry on his/her family life with his/her non EEA spouse. 

Mr Justice MacEochaidh also reviewed the Article 41 case law in the area. He confirmed that it is clear from the jurisprudence that marriage between an Irish national and a non national may engage the right of residence which could only be denied for countervailing purposes. He confirmed that the Minister must balance the potentially competing interests in a proportionate and fair manner. 

In summary he stated as follows ; “Having reviewed all of these decisions, it is my view that as Irish national married to a non Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. The right is not absolute. The State is not obliged in every case to accept the country of residence chosen by such a couple. Though I believe such a prima facia right exists, not every set of circumstances will engage the right.”

Considering the case before him, Mr Justice MacEochaidh took into account the fact that the applicants had acknowledged there had been a breach of immigration law, and that there was no question of non immigration criminality or any disregard for the family or marital rights. He noted that they demonstrated commitment to their marriage, and that Mrs Gory had left the State in compliance with the deportation order. In these circumstances, Mr Justice MacEochaidh found the Minister’s decision to refuse to revoke the deportation order was unlawful, and directed that the decision be overturned. 

We submit the deciding officer must therefore apply a presumption that the spouse of the Irish citizen in a genuine and subsisting relationship will be granted permission, unless countervailing circumstances should warrant otherwise, and no such exceptional circumstances exist. Further, poor immigration history alone will not be a sufficient countervailing circumstances to render a decision to refuse the non EEA spouse residence permission as proportionate or reasonable.

Karen Berkeley 

Brophy Solicitors