Thursday, July 31, 2014

NATURALISATION UPDATE: SECTION 28 DECLARATIONS

Section 28 of the Irish Nationality and Citizenship Act 1956 (as amended) provides that any person who claims to be an Irish citizen, other than a naturalised citizen, may apply for a certificate of nationality stating that the applicant is an Irish citizen.

Pursuant to this, we have recently dealt with an application regarding two minors claiming Irish citizenship under Article 6 A of the 1956 Act which provides that “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years”. 

The father of the applicants entered the state in 2005 following his refugee father’s successful application for family reunification under Section 18 of the Refugee Act. The children in question were subsequently born in 2009 and 2011, their father therefore having in excess of the three year reckonable residence necessary for his children to be deemed Irish citizens. However, the applicants’ initial application for Irish passports was refused on the grounds that there were gaps in the father’s registration in the Register of Non-nationals. 

Applying the judgement of Mr Justice Ryan in Sulaimon V Minister for Justice Equality and Law Reform it was successfully argued that the gaps in the register were through no fault of the applicant’s father, whose lawful residence had been acknowledged on several occasions by the Minister through the granting of family reunification under section 18 of the Refugee Act and through the granting of visas permitting travel to the state.

Following a lengthy decision period by the department, we are pleased that certificates of nationality have been granted to the applicants in question. Brophy Solicitors wish to congratulate the applicants on their success and wish them well in the future. 

Caroline Grogana

MIGRANT ACCESS TO SOCIAL SECURITY & HEALTHCARE: POLICES AND PRACTICE IN IRELAND

Migrant access to social security has proved controversial across Europe, with a widespread perception that migrants account for a larger proportion of social security recipients than nationals. However, administrative data proves this to be incorrect, illustrating that in a number of social security areas there is actually an under representation of migrants as opposed to nationals. 

A recent European Migration Network (EMN) study finds that in terms of jobseekers benefit there is a disproportionately low level of migrants receiving payments at 14.7% of recipients, compared to their 15.4% share of the labour force. It was also found that the number of EU nationals between the ages of 15 and 28 receiving jobseekers allowance and jobseekers benefit were disproportionately high at 9.7% and 8.7% respectively while only accounting for 7% of the total labour force. In contrast non-EU nationals were found to be underrepresented only accounting for 3.1% and 1.6% of each benefit despite making up 4.1% of the labour forces. The study and its findings can be viewed here: http://emn.ie/files/p_201407170618162014_Migrant%20Access%20to%20Social%20Security.pdf

As well as looking at the numbers of migrants in receipt of the key social security benefits in Ireland, the EMN study also looked at the related policy decision making. In practice, Ireland applies the same rules governing access to social security to migrants as to non-migrants, however, their impact can differ greatly.

Firstly, the necessity of meeting the Habitual Residency Condition (HRC) was examined. While both groups are subjected to the same requirements, the impact on each can be substantially different. This is mainly due to the fact that there is not a sufficiently clear definition of Habitual Residence leaving a huge amount of discretion to the deciding officer in the Department of Social Protection. A number of NGOs have characterised the assessment of Habitual Residence as “too subjective and complex” to allow consistency in decision making. A 2008 Barrett and McCarthy study suggests that this discretion might very well be the reason for the lower proportion of migrant recipients. 

Difficulties can also arise from the assessment of the applicant migrant’s right to residence. In theory it entails a straight forward assessment of their status. In reality, it is much more complex due to the various permits available and the different rights each confer. Ten years on from its 2004 introduction, the system undoubtedly needs significant updating.

The EMN study also highlighted the ambiguity which has arisen from the separate evolution of the Irish immigration and social security policies. By way of example, would the holder of a work permit for a specified job be categorised as ‘available for and genuinely seeking work’? What exactly qualifies as ‘becoming a burden on the state’?

Similar issues are faced in regards to access to health services with migrants having to satisfy ‘ordinary resident’ conditions of having resided in the state or intending to reside in the state for at least a year. Despite its formal introduction in the Health Services (Amendment) Act 1991, no formal definition was provided, once again causing ambiguity and uncertainty.

As noted by the EMN study and from our own experience, there are clearly issues and discrepancies which need to be addressed in relation to migrants access to social security and health services.

Caroline Grogana

Wednesday, July 23, 2014

ROMANIAN AND BULGARIAN CITIZENS AND RECKONABLE RESIDENCE

Recently we have been working on a case involving the disputed reckonable residence of a Romanian national for the purposes of obtaining an Irish passport for the applicant’s child.

Following Romania’s accession into the EU in 2007 our client was eligible to reside in the State. Having resided in the State legally between 2007 and 2013 the applicant should have been eligible to obtain an Irish passport for his daughter. However, this was denied by the Passport Office which claimed that the client was not lawfully resident due to having worked without a work permit for a number of years. While it is recognised that the father may have breached employment law, his residence was in fact valid under EU law and thus Irish law. The High Court proceedings have been issued on the contention that the Passport Office was erroneous in its decision as our client did not fit into any of the specified ‘reckonability’ restrictions in S6B(4) of the Irish Nationality and Citizenship Act 1956.

We are pleased that the High Court has granted to leave to bring a judicial review against this decision. We will provide further update in due course.
 
Karen Berkeley

FAMILY REUNIFICATION OF DEPENDENT PARENTS

Recently, we have been granted leave on a number of High Court Judicial Review proceedings against the Minister for Justice and Equality for failure to properly assess applications for family reunification for dependent parents. These cases have involved applicants who are Irish citizens or possess permanent residence in Ireland, and who have Irish citizen children, and have demonstrated the necessary financial means to support their parents so as not to place financial burden on the state. They have also demonstrated that their parents are in fact dependent on them financially, socially and emotionally, many of them having severe medical conditions and health problems, with no viable options for care and support in their home countries. In one particular case, medical evidence was provided confirming that one of the applicant’s parents could not to undertake long haul flights and this information was not considered.

The main issue that has arisen is the Ministers reliance on the INIS’s Policy Document on Non-EEA Family reunification. This document places rigorous hurdles on applicants stating that a “Highly restrictive approach should be taken”, citing the states inability to take on the potential financial liability of elderly dependent parents.

The financial thresholds for a sponsor of one dependent parent is a requirement to evidence earnings of €60,000 gross for the three years preceding the application, and 75,000 gross for inviting two parents.

Whilst our clients have good earnings, and demonstrated a strong ability to financially support their parents, they were unable to meet the high level of finances required.

No consideration was carried out that our clients sought only to acquire a Stamp 0 permission for their dependant parents - it is an express condition of residence that the applicant is not entitled to claim any state benefit.

Disregard was paid to the applicants rights as a family afforded by Article 41 of the constitution, section3 of the European Convention on Human Rights, in particular Article 8, and European Union law. In refusing the applications, the minister failed to asses these protections, stating that the applicants’ rights under Article 8 of the European Convention on Human Rights would be fully considered if, and when, the deportation process is initiated against the second and third named applicants pursuant to section 3 of the Immigration Act 1999. We submit that this failure to fully weigh and assess the applicants rights render these decisions unlawful.

We would also highlight that the INIS policy document is not legally binding, and unfettered reliance may ultimately be unlawful due to its failure to recognise and adequately vindicate the safeguards and protections afforded to permanent residents rights of the family.
 
Karen Berkeley

LONG TERM RESIDENCY FOR RETIRED PERSONS OF INDEPENDENT MEANS

We are currently advising several clients on applications for permission to reside in the State as retired persons of independent means. This specific situation is relevant to a non-EEA person, who does not seek recourse to employment, self-employment or public funds, but merely wishes to reside in the state, supporting themselves through independent means, for example income generated through rented properties, investments etc.

We recently contacted the Irish Naturalisation and Immigration Service (INIS) to establish if a specific application procedure applies here and what criteria must be satisfied. We referred to the INIS website that sets out the various forms of stamps and includes a retired person of independent means as covered by Stamp 3 permission.

We received a response from INIS this week that states that the appropriate stamp is in fact a Stamp 0 and that their website will shortly be updated to reflect the position. INIS stated that they do not have a distinct category of retirees for immigration purposes. INIS indicated that permission would only be granted on the express understanding that the applicant is not entitled to any State benefit and on the basis of full documentary evidence to confirm they will not become a financial burden on the State. The primary requirements were stated to be: financial self-sufficiency, comprehensive medical insurance, and good character. They clarified that there is no application form. They also clarified that it is open to non visa nationals to make an application from outside the State.

It is clear therefore that in order to attain stamp 0 in this capacity, an applicant must provide extensive documentary evidence, primarily substantiating their financial self-sufficiency, including details of all income and expenditure. It is necessary to have comprehensive medical insure, that INIS stated must be equivalent to Plan D VHI, HealthPlus Premium (http://www.vhi.ie/pdf/products/TOBHPpremium.pdf). The applicant must also be of good character and be able to provide police references from every country they have resided in during the twelve months prior to application.

If the application is successful residence will be granted for a maximum of twelve months, after which a renewal application must be submitted.

INIS stated in their response that this is to be regarded as a temporary status only. It is important to note however that Stamp 0 is not amongst the express exclusions for eligibility for citizenship by naturalisation and therefore any period spent on Stamp 0 should constitute reckonable residency. See our previous post that specifically addresses this point.

Brophy Solicitors

Wednesday, July 16, 2014

REFUGEE CRISIS

Last month World Refugee Day reminded us of the plight of millions of refugees worldwide, but this thought should be kept in mind for as long as war and conflict continue. The world is currently experiencing a refugee crisis, the scale of which was last seen during World War 2. This is largely caused by the Syrian war, which has claimed 80,000 lives, forced 2.5 million people to leave the country and internally displaced a further 6.5 million.

How has Ireland typically reacted to refugee crises? In World War 2, when around 50 million people were displaced by conflict and millions of people persecuted, Ireland hosted 150 Jewish refugees. After Augusto Pinochet’s coup in Chile in 1973, which resulted in thousands of deaths and injuries, Ireland was one of the last EU countries to take Chilean refugees and in the end only took 12 families. The year 1956 stands out, as 541 Hungarian refugees were welcomed in Ireland.

Now, during the greatest refugee crisis since the Second World War, when the UN estimated that 51.2 million people were forcibly displaced people worldwide at the end of 2013, Ireland is taking 90 Syrian refugees.

This number is extremely low. Austria, a country with a GDP per capita not far off Ireland’s, will host 500 Syrians, as will the UK and France. Germany, on the other hand, has committed to providing 30,000 places for Syrians.

Though the efforts of Germany and the rest of the EU seem impressive compared to Ireland, the EU is receiving relatively few refugees when Syria’s neighbouring countries are considered. While 60,000 Syrians have claimed asylum in the EU since the start of the war, more than 2 million have fled to the Syrians neighbouring countries, such as Lebanon, Jordan, Turkey and Iraq. This means that the EU has only received 4% of Syria’s refugees.

Everyday, an estimated 2,000 Syrian refugees enter Jordan. Lebanon, a country the size of Munster, is accommodating 1 million Syrians that have sought refuge there. These countries cannot cope with this huge influx of people. In Lebanon, the population explosion has led to price increases, housing shortages and many social problems.

Moreover, Jordan’s position highlights that Ireland’s low number cannot be justified on cost grounds. Developing countries, like Jordan, take in the vast majority of refugees. Indeed, 80% of the world’s refugees are hosted in developing countries.

All EU states should aim to help ease the pressure off Jordan and Lebanon and endeavour to make a real effort to help the millions of Syrians that have had to flee their home. Ireland, in particular, should commit to host more than just 90 Syrian refugees.

In 2012, the former Justice Minister Alan Shatter admitted with regret that Ireland’s “morally bankrupt” regime of the 1930s kept the doors to this state “firmly closed to German Jewish families trying to flee from persecution and death.” It is not enough to realise our mistakes 60 years too late, now is the time to take responsibility and play our part.

Ciara Dowd

Wednesday, July 9, 2014

GUIDANCE ON THE TREATMENT AND ASSESSMENT OF BEST INTERESTS OF MIGRANT CHILDREN

UK Court of Appeal decision: EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874,


Summary of facts

The Appellants consisted of a mother, a father and three children, all Philippine nationals. The mother was lawfully resident in the UK on a work permit from June 2007. The rest of her family joined her in April 2008. In February 2011, the Appellants applied for indefinite leave to remain. This application was incorrectly rejected on the basis that it was made on the wrong form. This meant that when subsequent applications were made, they were dismissed on the basis that there is no right of appeal. When the matter was finally considered, the judge rejected the claim because EV was not being paid a sufficient amount for her to qualify. Her employer wrongfully failed to employ her at the relevant rate. The family were denied leave to remain and were expelled.


Summary of guidance

Christopher Clarke LJ held that when deciding on the best interests of a child, the factors that are to be considered are;

(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to live in that country;
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (at paragraph 35.)

He continued: “The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.” (at paragraph 36)


The significance of this case is that the Court of Appeal has given the most coherent guidance to date on how to interpret and apply the best interest of children in immigration cases. This judgment will be useful in giving guidance on the issues that should be addressed by legal practitioners and whether an immigration officer has made a proper assessment of a child’s best interest in their determination. This judgment is obviously not binding in Ireland but offers assistance in an area where there is little Irish case law, policy or guidelines.

Ciara Dowd

DIRECT PROVISION – URGENT CHANGE NEEDED

There is an urgent need for change in Ireland’s asylum system. As it currently stands, asylum seekers must wait in direct provision centres while their application for refugee status or subsidiary protection status is pending. Direct Provision was originally introduced as an emergency measure in 1999 and was only supposed to last for 6 months. Indeed, the reaction to this change from asylum seekers is observable - in 2000, there were 10,938 new applications, while in 2013, there were 946.

Currently, there are around 6,000 people living in Direct Provision accommodation centres. Because of the poorly structured application procedures, 59% of current applicants have been in this system for over three years and some have been there for over 6 years. The hardship of long periods of time living in Direct Provision is aggravated by the general poor standards of accommodation and lifestyle associated with these centres. The recent Economic and Social Research Institute report on Direct Provision notes a lack of privacy, overcrowding, a lack of facilities for children, and a lack of autonomy. The lack of autonomy with specific regard to food and the lack of exercise facilities mean that physical health problems are widespread. Mental health problems such as anxiety and depression are also common.

Internationally condemnation 

In fact, the Direct Provision procedure has received international condemnation. The Balseskin Reception Centre in Dublin has been condemned as inadequate for its conditions by the Council of Europe in a report on trafficking. Women and children who have been sexually exploited and abused are held in mixed gender centre, which may aggravate their trauma. 

The matter was raised in the High Court of Northern Ireland in Belfast, where the concern applicants were asylum seekers who applied for asylum in the Republic of Ireland but subsequently travelled to Northern Ireland. Mr Justice Stephens noted the poor treatment asylum seekers in Ireland experience, in particular, the absence of permission to work, the low allowance and widespread health problems. He found that the conditions of the centres were contrary to the best interest of the child [In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88(14 August 2013)].
Can change happen?

It seems as the government are satisfied with the poor standards associated with Direct Provision centres, as it operates as a deterrent to asylum seekers who may wish to claim refuge in Ireland. Fine Gael TD Charlie Flanagan said during Prime Time in January that it should be ensured “that Ireland is not an attractive place for applicants”, so the State would not become overburdened. Elsewhere, the Former Minister for Justice Alan Shatter has also defended direct provision on cost grounds. 

Thus, it is clear that if an alternative system were going to be considered by the government, it would have to be equally economical or even cheaper. While the €19.10 per adult and €9.60 per child is easy to calculate, it is harder to put a monetary value on the mental health issues that asylum seekers experience resulting from the lack of autonomy in the centres, or perhaps the insensitivity to victims of gendered crimes. This sanctioned ill-treatment of those who have not committed any crimes and who have already suffered enormously can no longer continue and be justified on cost effectiveness grounds. The government needs to be conscious of what legacy it wishes to leave behind on its treatment of asylum seekers.

Ciara Dowd
Brophy Solicitors