Friday, November 28, 2014

FAMILY REUNIFICATION FOR REFUGEES – SUPREME COURT JUDGMENT IN AMXS V MINISTER FOR JUSTICE

The Supreme Court delivered a judgment on the 20th November 2014 which gives some clarification to the Minister’s decision-making process in respect of family reunification applications for refugees pursuant to Section 18 of the Refugee Act 1996. The case concerns a very typical scenario of our clients whereby the refugee applicant has a strong dependency/support relationship with his family members, but he or she may be not be in position to financially support them on their arrival in the State. Often the refugee applicant is still a student themselves.

The facts of the case

In May 2009, the Somali national applied to the Minister for family reunification in respect of his dependent mother and siblings. The Minister’s decision to refuse the application was challenged by way of High Court Judicial Review proceedings and quashed by Mr Justice Cross in February 2012. The Minister was then required to carry out a re-consideration of the application and further evidence of the family members’ ongoing dependency on the applicant was submitted. 

The Minister refused the applications for the second time in July 2012, finding that the family members were dependent but refusing the application on financial grounds, i.e. that they posed a risk of financial burden to the State if the application was granted. The decisions in respect of the Applicant’s mother and minor sibling were challenged before the High Court for the second time. The Applicant was successful before the High Court and the Minister then appealed the High Court’s decision to the Supreme Court.

The findings of the Supreme Court

The Supreme Court found that the Minister is entitled in a general sense to refuse family reunification applications under Section 18(4) on the basis of financial grounds, i.e. in cases where the applicant is not in a position to support the family members if they come to Ireland. This differed from the High Court’s finding that that the Minister could never refuse an application under Section 18 solely on the basis that the family members may be reliant on social welfare in the State. 

However, the Supreme Court emphasized that while the Minister could refuse an application on financial grounds, the Minister must properly apply the principle of proportionality to the case. 

Mr Justice Frank Clarke stated as follows;

“The obvious inference to draw is that the absence of financial support is to be an exclusionary factor in respect of general applications but is only to be a factor to be taken into account amongst others in the case of those to whom the family reunification provisions apply”

The Supreme Court emphasized that significant weight must be given to the fact that the Oireachtas has chosen to confer a special entry status on dependent members of the extended family of a refugee. 

“In that context, it is difficult to see, without more, the mere fact that there may be some limited cost to the State could be decisive.”

The Supreme Court then carried out a balancing exercise between the family rights of the applicant against the exposure to risks for the State. In this regard, it was stated as follows;

“in the absence of any specific factors in relation to these applicants, it is difficult to see how the weight to be attached, in the context of family reunification, to the general right of the State to control immigration, could outweigh the factors which favour family reunification in this case”.

It was confirmed that the courts should only interfere with the Minister’s exercise of his discretion when the Minister is clearly wrong, and in this case, Mr Justice Clarke confirmed “I am satisfied that the Minister’s balancing exercise is clearly wrong”.

It was therefore held the High Court was correct in finding the Minster’s decision was disproportionate and should be quashed. 


Karen Berkeley

Thursday, November 20, 2014

OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge

Thursday, November 13, 2014

DELAYS WITH STAMP 2 RENEWAL APPLICATIONS

We have been dealing with several queries from students who are attempting to resolve their immigration matters through correspondence with the Student Review Group, but are experiencing significant delays in receiving a response. 

Students are generally unable to renew their permission with GNIB and are referred to Student Review Group at the Irish Naturalisation and Immigration Service (INIS) when they have a significant gap in their immigration permission or if there is an issue with their attendance. A specific Student Taskforce has been set up with a dedicated information webpage for the large number of students affected by the recent college closures. Details can be found here: http://www.studenttaskforce.ie/

Our own experience is that students are facing excessive delays in having applications to the Student Review Group (SRG) processed. In one such case we are dealing with, the student was required by GNIB to apply to Student Review Group after his college incorrectly reported his attendance to the GNIB. He has now been waiting one year and nine months for a decision and has faced serious difficulties supporting himself financially during this period as he has been undocumented and without permission to work. We are now in correspondence with the SRG on his behalf trying to resolve the matter and have threatened to issue High Court proceedings if we do not receive a decision on his case in the next seven days. 

In such cases, it is important that students do not simply cease studying when their permission expires and while their applications are being processed by Student Review Group. The basis on which Stamp 2 is issued is after all study, and if the student is no longer fulfilling the conditions of their stay, it may be open to Student Review Group to refuse a renewal application, even if there is a long delay in them issuing that decision. Students will generally be required to show their continued good attendance at college together with evidence of in date private medical insurance. 


Rebecca Keatinge

Thursday, November 6, 2014

UPDATE ON FAMILY REUNIFICATION OF DEPENDENT PARENTS

We were recently successful in an application for Stamp 0 made for dependent parents of an Irish national. We have previously faced difficulties in a similar case and the current case gives some indication of what factors may persuade the Department to grant permission tone case over another. 

These are cases where Irish citizen children apply for permission to reside in the State for their dependent parents, who are non-EEA nationals, demonstrating that they have the necessary financial means to support their parents and that their parents will not place financial burden on the State. They must demonstrate that their parents are in fact dependent on them financially, socially and emotionally. In several cases we have dealt with, dependent parents have severe medical conditions and health problems, and no viable options for care and support in their home countries.

The Irish Naturalisation and Immigration Service (INIS) Policy Document on Non-EEA Family Reunification is applied by INIS when considering and determining these cases. The policy places rigorous financial threshold on applicants, requiring the sponsor of two dependent parents to evidence an income of €75,000 to support the application. 

In a previous case we have dealt with, an application made by a sponsor in a strong financial position was refused and one of the reasons cited in the refusal was the fact that the parents were in the State unlawfully. In that case, medical evidence had been provided confirming that one of the applicant’s parents could not to undertake long haul flights and hence remained in the State after their permission had expired. Nonetheless, the fact of their unlawful residence was held against them. That case is currently subject of High Court litigation. 

In our recent case that was successful, the parents were also in the State unlawfully, their permission having expired while the application was pending. Medical evidence was also provided showing that they were not fit to fly. However, what appears to have been the factor that distinguished the recent case was that the sponsor clearly evidenced the very strong financial position and substantial income and therefore clearly established that the sponsor would have absolutely no difficulty supporting the dependent parents in the State. We were able to make convincing submissions that there could be no reasonable prospect that the parents would become a financial burden on the State and it appears that the financial position may have been a decisive factor in ensuring the application was successful. 

It is also noteworthy that this application was processed in just over three months, which was relatively quick. The clients are obviously enormously relieved at the outcome. 


Rebecca Keatinge

EU TREATY RIGHTS AND APPLICATIONS FOR NATURALISATION

We have recently made several applications for naturalisation on behalf of applicants who satisfy the reckonable residency criteria on the basis of their EU Family residence card. In these cases, the applicants have been issued with EU Family residence cards and Stamp 4 permission for five years on the basis that they are a family member of a Union citizen who is exercising their Treaty rights in the State. 

Ordinarily, the applicant is the spouse of a Union citizen who is working in the State. Several of these applications have been made prior to the applicant attaining five years permission to remain from the date of their actual grant of Stamp 4 permission by the EU Treaty Rights Section. For various reasons, they have sought to make the application earlier. We have made the argument on their behalf that they enjoyed an entitlement to reside since their date of marriage to the Union citizen and that their reckonable residency should be calculated from the date of marriage. 

Until recently we had encountered no difficulties with this submission. However in the last two weeks, we have received refusals in two such cases. In both of these cases, the Citizenship Unit have explicitly stated that EU family permission to remain is taken from the date such permission is granted ie not from date of marriage. In both cases we have responded to the Citizenship Unit asking that they urgently review the refusals, making the strong submission that as the family member of an EU citizen who has exercised EU free movement and who has been economically active in the State, the applicant enjoyed a right to reside from the date of marriage pursuant to Article 7 of Directive 2004/38EC, (the Directive) the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) (the Regulations). Our argument is that such permission was not contingent or conditional on making any application to the Minister; it was an entitlement derived from EU law. 

We have not had this type of response until now and it remains to be seen how the Citizenship Unit will deal with such applications going forward. While our legal arguments appear sound, on a practical level these refusals may cause difficulties for applicants and anyone in this position is best advised to ensure they are in a position to make a permanent residency application or an application for retention to keep their permission in date and enable them to maintain their permission beyond the five year EU Family card. 

Rebecca Keatinge