EU TREATY RIGHTS: THE SURINDER SINGH ROUTE AND THE EFFECT OF O V THE NETHERLANDS

On the 9th of July 2012, the UK Home Office implemented major changes to the rules regarding family migration. These new rules make it much more difficult for British nationals to bring their non-EEA family members into the UK. The documentary requirements are cumbersome. The introduction of a £18,000 minimum income has caused a significant barrier with reports suggesting that 47% of the British population would not meet the minimum threshold. Further issues with the minimum income level arise due to the fact that the non-EEA nationals earning potential is not taken into account whatsoever. The rules regarding elderly dependant relatives make it almost impossible to unite with them. Where there is no cross border element to invoke European Union law, these tough and largely insurmountable domestic laws apply.

Paradoxically, if a UK citizen moved to Ireland for the purposes of economic activities, and wished to reunite with a non-EEA family member, EU free movement law applies, making the whole process much simpler and less cumbersome. An application for an EU Family residence card does not require excessive documentary evidence, and there is no minimum income level.

Basically, a case of reverse discrimination has been created between domestic Immigration law and the EU Free movement law. It is clearly more beneficial in terms of family reunification to be a UK citizen in Ireland, or an Irish citizen in the UK.

There is, however, an exception to this general rule.

The Case of Surinder Singh

The Court of Justice judgement in the case of Surinder Singh provides a means whereby EU Free Movement law can be applied for a Union citizen within their own member state. The basic principle derived from Surinder Singh states that the right for a Union citizen to move from one member state to another member state includes the right to return. If by returning, the Union citizen would not be able to take advantage of the more lenient free movement laws, it would be disadvantageous for them to return home. As such, the principle emerged that when the Union citizen returns to their home member state after exercising EU treaty rights in another member state, they are construed as exercising the rights of free movement under EU law. So, on their return, family reunification must be assessed under EU free movement law rather than domestic law.

The Effect of O V The Netherlands

The Surinder Singh principle was further developed by the Grand Chamber of the Court of the European Union in the case of O V The Netherlands. Despite not referring directly to the case, O V the Netherlands provides new, binding guidance on the Surinder Singh principle. Ultimately, O V the Netherlands set out that in order to take advantage of the Surinder Singh principle:

· A 3 month residence period is necessary;

· Holidaying or weekend visits do not qualify for the purposes of calculating the residence period;

· Any union citizen, not just workers or the self employed may benefit from the principle;

· During the required period of residence family life must have been ‘created or strengthened’;

· Abuse of the principle will not be allowed or tolerated.

The Reality
This seeming ‘get out of jail’ card isn’t perfect. The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended) – and it requires that the Union citizen’s “centre of life” has transferred to the other member State. For many people moving their whole life so as to invoke the Surinder Singh route just isn’t an option when considering jobs, families, mortgages, etc.

In Ireland, we do not have specific statutory measures, or even stated policy, on the Surinder Singh principle. From our experience here at Brophy Solicitors; where we are working on a number of these cases, the Department has accepted and applied the principle where evidence has been provided that the Union citizen genuinely exercised their EU treaty tights in the other member state.

Brophy Solicitors

FAMILY REUNIFICATION AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 of the European Convention on Human Rights provides that:

“Everyone has the right to respect for his private and family life, his home and his correspondence”.

In regards to family reunification applications, the respect for family life referred to in article 8 becomes of particular importance.

Over the course of its history, the European Court of Human Rights has established a substantial body of case law in regards to both the right to respect for family life individually and its impact on the assessment of unsuccessful family reunification applications. Importantly, the ‘family’ has been established as an autonomous concept, meaning the European Court of Human Rights is not bound by the national courts assessment of what constitutes as a family.

That is not to say that the courts handling of unsuccessful family reunification applications and article 8 is completely unfettered. In its assessment of the individual’s rights under Article 8, the court must find a balance with the host states immigration policies. Usually a wide margin of appreciation is afforded to the state. This reflects the wider policy that it is primarily for the state to ensure that the individual’s rights are upheld. In her article, ‘Family reunification in EU law and under the ECHR’ Nuala Mole points out that the key question in assessing the interplay of family reunification and Article 8 is “whether the state has overstepped this margin of appreciation in the particular case before it and so failed to respect this key right.”

In general, recognition must be given to the well established fact that the ECHR does not guarantee to individuals a choice of country of residence.

Taking a similar interpretation to its stance on family regularisation, the ECHR will generally find that a spouse resident in Europe, whose partner is not within the union, may be required to relocate as opposed to have their spouse join them, unless they show that there are “serious obstacles” preventing relocation. This will not usually constitute a breach of Article 8 as it is not preventing the couple continuing their ‘family life’, even if they are required to do so in another country.

Nuala Mole’s assessment is particularly relevant, “The Court also attaches considerable weight to the fact that the immigration difficulties, which a family is now encountering, were ascertainable at the time of the marriage, and that the couple should not therefore have had an expectation that they would be able to live together in the host country”.

In the case where it is a child who has been left behind, as often happens when families migrate, the ECHR have generally taken the same hard line approach that there is no Article 8 violation where it is possible for the family to carry out family life in their country of origin. However, sometimes a much more favourable approach may be taken. Where circumstances dictate that a different path is necessary, the ECHR may look favourably on the applicant.

Nuala Mole’s article ‘Family Reunification in EU law and under the ECHR’ can be viewed here.

Brophy Solicitors

A SUMMARY OF THE FINANCIAL RESOURCE REQUIREMENTS FOR FAMILY REUNIFICATION

The Policy document on Non-EEA Family Reunification sets out the thresholds to be applied when accessing family reunification applications involving immediate family members:

· the nuclear family (married partners and children living in the same household); and

· de facto partners (a couple living together on a genuine domestic basis).

As the document points out, it must be recognised that “the financial capacity is just one of the conditions to be satisfied for family reunification to take place”. That being said, a significant amount of emphasis is placed on the financial requirements so as to avoid a situation where the applicant becomes a financial burden on the state.

Depending on the status of the sponsor, different sets of financial guidelines apply to particular cases:

The Sponsor is an Irish Citizen

Where the sponsor holds Irish citizenship, the guidelines are two tiered. Firstly, the sponsor must not have been reliant on state assistance for a continuous period in excess of 2 years, immediately prior to the application. They must not have been a burden on the state. Secondly, in the three year period prior to the application, the sponsor must have “earned a cumulative gross income over and above any state benefits of not less than €40k”.

The Sponsor is a Non-EEA National

In cases where a sponsor is not a national of a European Economic Area country the guidelines to be applied depend on which sub-category they fall into.

Category A sponsors include:

· Green Card Holders

· Investors

· Entrepreneurs

· Business Permission Holders

· Researchers

· INIS Approved Scholarship Programme Students (e.g. KASP)

· Intra Corporate Transferees

· PhD Students (subject to conditions including no recourse to social welfare payments)

· Full Time Non-Locum Doctors in Employment

In this category, it is possible for family reunification to take place before any earnings are accumulated. For this to be the case, the sponsor and their immediate family members subject to the family reunification application must continue to meet the conditions which their permission to reside in the state is based on. On renewal of their permission, evidence of such must be provided. For green card holders and investors, this will be accessed based on “achieving the levels of earnings projected”. While in the case of PhD students, time limits are applied and academic advancement must be evidenced. In addition to the particular requirements of a Category A sponsors status, the policy document sets out that there must not be “recourse to social welfare payments” i.e. neither the sponsor nor their family members may become a burden on the state.

Category B sponsors include:

· Non Green Card Employment Permit Holders

· All Stamp 4 Holders not covered by other more favourable arrangements

· Ministers of Religion who are not maintained by the church, in cases where they are it may be possible for these sponsors to be considered under Category A

This category of sponsors must have a gross income in both of the previous two years, in excess of the level applied by the department of Social Protection in assessing eligibility for Family Income Supplement. Based on the FIS, families with children are required to have the following net incomes per week; which are based on the number of children:

· 1 child - €506

· 2 children - €602

· 3 children - €703

· 4 children - €824

· 5 Children - €950

Where a couple does not have any children, the FIS does not apply. In cases where these requirements are met, there is a reasonable expectation that they will continue to be met in the future. Where a sponsor falls short of the required level, declared and verified savings may be taken into account.  However, as previously stated, these are mere guidelines and may not be strictly adhered to. The deciding officer assessing a particular case is afforded a certain level of discretion where there are “doubts regarding the sustainability of earnings”.
Regardless of which category the sponsor falls into, the onus of proof to satisfy the immigration authorities is on the applicant.

The Policy document on Non-EEA Family Reunification may be viewed here. Section 17, pages 39 to 41, set out the guidelines discussed above.

Brophy Solicitors

EU TREATY RIGHTS AND RETENTION OF THE RIGHT TO RESIDE FOR NON EEA FAMILY MEMBERS

We work on many EU Treaty Rights cases. An area currently causing much confusion is the EU Treaty Rights application for retention of the right to reside for non EEA family members.

In certain circumstances, a non EEA family member of an EU citizen may be entitled to an independent right to retain their residence in the State following the divorce or departure of the EU Citizen from the State.

Article 12 of Directive 2004/38/EC deals with the situation of death or departure of the EU citizen. The Directive is silent in respect of family members who are non EEA nationals, and therefore leave the matter to be determined at the discretion of the host Member State. In Ireland, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) has not implemented specific protections in these circumstances. It can therefore be understood that the non EEA family member loses their right of residence in the case of death or departure of the EU citizen.

However, there is an exception to this general rule. Article 13 (1) of the Directive provides for the right of retained right of residence for family members who are nationals of a Member State in the event of divorce. Article 13 (2) applies to family members who are not nationals of a Member State.

The primary qualifying condition is that set out in Article 13(2)(a):

“prior to the initiation of the divorce…the marriage…has lasted three years, including one year in the host Member State”.
The second sub paragraph of Article 13 of the Directive provides:

“Before acquiring the right of permanent residence, the right of residence of the person concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or…...or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements……Such family members shall retain their right of residence exclusively on personal basis.”

These provisions have been interpreted by the Department of Justice to mean the EU citizen must be in Ireland exercising EU Treaty Rights at the date of the divorce in order for Article 13 to apply. It is argued that otherwise, how can the non EEA family member retain a right of residence that they lost when the EU citizen previously left the State?

This is an important question in the case of a family member seeking to acquire a retained right of residence. Must he or she show that the EU national remained a worker etc. at the time that the right of residence is claimed to accrue (here the time of the divorce)?

In the UK, Regulation 10(5)(b) requires the applicant to show he or she was residing in the UK in accordance with these Regulations at the date of termination. In other words, that at the date of the termination of the marriage he/she was residing in the UK as the spouse of an EU national who was working at that date. This identifies the focus as being on the spouse’s status as a worker at the date of the divorce.

However, a distinguishing factor between Ireland and the UK is the fact the Ireland operates extremely restrictive divorce laws. A person cannot become divorced in Ireland until they have lived separately for a four year period. In such circumstances, many EU nationals will return to their home country to effect the divorce. Does this mean they have departed for the purposes of EU Treaty Rights law? And thus rendered the protections of Article 13 void for their ex non EEA spouse?

The question has become the subject of many judicial review proceedings before the Irish High Court in recent years. The High Court has made a reference to the European Court of Justice and we await the Court of Justice’s clarification on the point.

Brophy Solicitors

UPCOMING CITIZENSHIP CEREMONY

Monday the 22nd of September will see nearly 3,100 people pledge their loyalty to the Irish state and become Irish citizens. They will join the ranks of over 60,000 people who have been declared as Irish citizens in the Convention Centre, North Wall Quay since 2011. In a ceremony fitting of such an auspicious occasion, the candidates will solemnly declare their fidelity to the Irish nation and their loyalty to the state. Following this, the much anticipated words of the Attorney General will declare, “Congratulations. You are now a fellow citizen of Ireland”. Rounding off the celebration will be the playing of the Irish national anthem, Amhrán na bhFiann, to the new Irish citizens.

Brophy Solicitors wishes to extend its congratulations to a number of our clients who will be receiving Irish citizenship at this ceremony in September.

Comhghairdeas do gach dúine!

Brophy Solicitors

NEW VISA SCHEME FOR THE COMMON TRAVEL AREA

On the 16th of June 2014, the Minister for Justice and Equality, Francis Fitzgerald, in conjunction with her British counterpart, the UK Home Secretary Theresa May, announced the introduction of a new British Irish Visa Scheme. This joint initiative between the INIS and UK Home Office will allow holders of a single visa to travel free throughout the Common Travel Area (CTA) of Ireland, Northern Ireland and the UK, which has operated between our countries since 1922. The scheme will commence in the autumn, initially being available to Chinese and Indian nationals. 

Under the current system, for a substantial number of foreign tourists and business people wishing to visit both the UK and Ireland, it is necessary to acquire separate visas for each country and, even more inconvenient, where they are returning to their original destination, a re-entry visa must be sought. The new scheme eliminates this barrier by operating in a reciprocal manner, allowing Chinese or Indian nationals, holding a single short-stay visa from the country of first entry within the CTA, to freely travel between Ireland, Northern Ireland and the UK without the necessity of extra visas. For example, a person doing business in London may travel on the same visa, that allowed entry into the UK, to Dublin. 

This ‘historic development’ and cooperation between he UK and Irish governments aims to significantly increase the number of tourists and business people travelling to both countries and in turn, positively impact the economy while still ensuring the necessary security measures are adhered to. In a press release announcing the scheme, Minister Fitzgerald stated that “the British Irish Visa Scheme will enable both countries’ immigration systems to work in tandem to promote and facilitate legitimate tourism and business travel to Ireland and the UK while also strengthening the external borders of the Common Travel Area”. 

While announcing the scheme in London, UK Home secretary Theresa May outlined the benefits of such schemes and the advantages of continued cooperation between the Irish and UK governments, “Joint initiatives such as this will help to attract more Chinese and Indian visitors to both the UK and Ireland, while also ensuring the robust management of our borders. We look forward to on-going work with Ireland towards our shared objectives of promoting growth and preventing the abuse of our immigration systems.”

The new scheme will replace the current Short-Stay Visa Wavier Programme which allows nationals of 18 different countries who are visiting the UK to enter Ireland on their UK visa. Since its introduction in July of 2011, records show that the number of tourists from these countries grew by a staggering 68%. This demonstrates the potential success of the new scheme and the prosperity and growth it is expected to bring. 

The press release announcing the scheme can be viewed here:

http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20launch%20of%20joint%20visa%20initiative%20between%20Ireland%20and%20the%20United%20Kingdom

Brophy Solicitors

“TESTING” THE SEXUALITY OF ASYLUM SEEKERS ENTERING THE EU – ADVOCATE GENERAL OF THE ECJ CONDEMNS “HUMILIATING” CREDIBILITY ASSESSMENTS

On the 17th July 2014, the Advocate General of the Court of Justice of the European Union gave her opinion on the upcoming joint case called C-148/13, C-149/13 and C-150/13. 

The applicants (A, B and C) came to the Netherlands seeking asylum as feared persecution because of their homosexuality. All of the applicants were denied asylum as they had not passed “Credibility Assessments” and thus had not “proved” their sexuality. The three men’s case have now reached the Court of Justice of the European Union.

Before the judges deliberate on a case, an Advocate General delivers a non-binding opinion. Ms Eleanor V.E. Sharpton is acting as Advocate General in this case. AG Sharpton’s opinion can be followed, ignored or to some extent taken into account by the judges when they determine the case. 

In this case, AG Sharpton was highly critical of tests on sexuality imposed on asylum seekers. Her opinion is that medical, psychiatric or psychological “expert opinions” in order to access an asylum seekers’ sexuality are not allowed under the asylum seekers’ Qualification Directive. This is because they breach the European Charter of Fundamental Human Rights.

Some “Credibility Tests” imposed by Member States that are considered by AG Sharpton include:

1) Upsetting and humiliating interrogations being forced on asylum seekers, including questions based on stereotypical assumptions of sexuality 

2) Demanding participation in “pseudo-scientific” medical tests such as phallometric measurements of arousal

3) Authorities seeking “proof” of sexual activity such as recordings of sexual activity

She notes that sexuality is something that is just inherently unmeasurable and personal thus these “Credibility Tests” breach refugees’ rights under the EU Charter to human dignity, right to consent to medical procedures, right to physical and mental integrity and the right to a private life, which includes the right to keep very personal information secret and the right to chose one’s sexuality.

AG Sharpton urges that refugees should not be subjected to a “trial” to prove their sexuality. Instead, AG Sharpton wants “co-operation” between authorities and asylum seekers. The first step in accessing a person’s sexuality is to simply ask them what sexuality they think they are.

Ergo, the authorities should look for what is not credible about the facts of situation rather than what is stereotypically “credible” for a LGBT person.

If AG Sharpton’s reasoning is followed by the Court, it is likely to have a positive and reforming impact on credibility assessments of LGBT asylum-seekers. It will also reinforce to Member States that not every person’s sexuality fits into the same narrative.

Brophy Solicitorsa

VISIT VISAS – DETAILED EXPLANATIONS FOR REFUSALS REQUIRED

We have recently obtained leave to bring Judicial Review proceedings on behalf of client who has been refused a visit visa for his mother and brother to visit him on a short term basis to attend a family event. The applications were refused on a numerous grounds including their possible failure to abide by the terms and conditions of the visa, and possible risks of financial burden on the State. The visa applicants have a clear immigration history and had pledged to abiding the terms and conditions of their visas. Our client has sufficient funds to support them for the stay. The visa refusals, which have the most serious consequences for the our client and his family, were based upon an un-founded suspicion as to the true motivation as to why they were travelling to Ireland.

Also it was noteworthy that our same client had obtained a visit visa the year previously for his mother in law, in exactly the same circumstances. Why was his mother’s case treated differently?

There was also doubts at to the extent of the consideration of the appeal given that the decision issued on the same day as the appeal submissions were received. 

We challenged the decision before the High Court on the basis that the decision to refuse the visit visas was unreasonable, arbitrary and disproportionate. The High Court granted leave for our client to bring Judicial Review proceedings against the Minister without difficulty. 

On the 30th July 2014, Mr Justice McDermott of the High Court delivered a judgement in a case that raised similar issues in respect of the quality of decision making in respect of visit visas. The case, Razzaq and Mohammed v The Minister of Justice, concerned a challenge to the Minister’s decision to refuse the parents of an Irish citizen a visa to come to Ireland for a four week holiday. The Applicants in questions comprised of a retired pensioner and a fulltime teacher in Baghdad, Iraq, whose son is a naturalised Irish citizen, living in Ireland with his wife and four children. 

Following the initial refusal of their application the clients submitted a substantial appeal letter addressing the concerns raised in the refusal; namely incomplete financial information, insufficient identification document and an insufficient obligation to return home being the main grounds of refusal. The appeal was once more refused on the grounds of not demonstrating a sufficient obligation to return home once their visa had expired.

Leave to apply for judicial review was granted in December of 2013 on the grounds that there was “no reasonable, rationale, lawful or evidential basis” for the respondent’s decision and that the decision was void for uncertainty due to the lack of published guidelines for the criteria applied in considering a visa.

On the bringing of the judicial review, it was held that the decision was not void for uncertainty as the respondent had clear provided a reason for the refusal that they were not satisfied the applicants would return home. However, the matters of whether the reasons for the refusal were adequately furnished and whether the decision was based on reasonable grounds were decided differently. The respondent contended that there was no obligation to elaborate on the reasons for refusal once a reason had been provide. 

In coming to a decision the court followed the reasoning of Henchy J in The State (Keegan) v. The Stardust Compensation Tribunal [1986] IR 642, that “in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common-sense”. The judge identified shortness of the reasoning. While stressing that the court was not condemning the use of short reasoning, it also stressed that “the reasons given for a particular decision must be clear and cogent”. It was felt that in order for fair procedures to be upheld, a more detailed explanation for refusal was needed.

In finding the decision of the respondent to be fundamentally flawed, the court granted an order of certiorari of the appeal decision.