Work visas not working for tech sector

While most industries in Ireland are stagnant or declining, the technical sector is experiencing surprising growth, reports an article in the Irish Times from Monday, 23^rd July 2012. There is an increased need for highly skilled technical workers, but the graduates from Irish universities are not sufficient to fill the demand. Companies are attempting to fill the vacant jobs with international workers, but they’re experiencing trouble with the bureaucratic element.

In Ireland, workers are given a green card, which allows them to obtain a visa to work in the State. The green card scheme is designed to recruit highly skilled workers to fill specific voids in various industries in Ireland. In order to obtain a green card, however, the worker must already have a job. In the time it takes to process the paperwork, the worker might not be available anymore. Smaller firms especially have a difficult time with the bureaucratic process, considering that many of them do not have an HR representative.

Most of the EU operates under a blue card scheme, which is an easier process. A blue card allows a highly skilled technical worker to enter into the EU and work in the region, allowing for a greater flexibility and mobility. Most of the EU already operates under this system, with Germany set to implement it on 1^st August. However Ireland, along with the UK and Denmark, has not participated yet.

Zartis is a software recruiting website, and John Dennehy, an employee, commented on the situation. He said, “If you brought in 10,000 people with computer science degrees, they would all have jobs within two or three months. Companies are crying out for those skills. We don’t have enough people in Ireland. They’re not going to take anybody’s jobs, because they are vacant.” His speech highlights one of the top concerns that governments face when bringing in international workers. A government does not want to handicap its own industrial sector by allowing international workers to arrive that might steal the work from Irish nationals, but Dennehy’s point is that the jobs are vacant anyway. People have expressed concerns that open borders might be taken advantage of, but for right now, the negatives are outweighed by the benefits.

Brophy Solicitors

24.07.12

http://www.irishtimes.com/newspaper/finance/2012/0723/1224320622064.html

Refusal of refugee tribunal to grant refugee status a 'breach of fair procedures'

An article in the Irish Times from Thursday, 19^th July 2012, reports that the High Court quashed an order refusing a Kosovan man refugee status. Mr Justice McDermott ruled that the case should be returned to the Refugee Appeals Tribunal to be reheard.

The man is a member of the minority gypsy Ashkali group, and he claimed in court that he was shot in the leg by Albanians outside his home in Kosovo in a racially motivated attack. The court denied him the ability to present medical records detailing the injury he acquired in the shooting on the grounds that his account of the shooting was implausible. He was not granted refugee status, and he appealed that decision to the high court.

Mr Justice McDermott ruled that this was a breach of fair procedures, and that the Refugee Appeals Tribunal was required to wait until the “expiration of a period allowed for the furnishing of medical reports” in order to refuse the documents.

Brophy Solicitors

24.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0719/1224320380859.html

Debunking the myths about international student migration

An article from the UK Guardian on 20^th July 2012 engages in a discussion about the benefits of having international students study at universities in the UK. Foreign students studying in England have been the topic of much controversy and debate, and the author of this article aims to put these arguments to rest.

He begins by debunking three common myths about foreign students. First, he says, foreign students are not taking the place of home students. They are evaluated for acceptance in completely different systems, and there is a cap on the number of UK students admitted to any university, so UK students are never competing for spots. Second, he addresses the myth that foreign students arrive in the UK, soak up knowledge, and then leave without contributing anything back. The author argues that the presence of global perspectives in a classroom is a valuable learning experience for home students. The third myth, and arguably the most common, is that international students will continue to arrive to study in the UK. There are new competitors seeking international students, namely the United States, Canada, and Australia, and the UK will have to work to make sure that international students continue to choose British universities. Already, international students only comprise 13% of the student body, and if international students feel as though their presence is unwelcome, they might seek their education in a different country. It is widely accepted that international students greatly benefit the classroom, they are an important part of the economy, and they foster beneficial relationships between countries, so the UK would benefit from making sure that international students continue to come there to study. The author concludes by saying, “We are convinced now more than ever that the international dimensions of higher education are central to the wellbeing and prosperity of the UK.”

Brophy Solicitors

23.07.12

http://www.guardian.co.uk/higher-education-network/blog/2012/jul/20/myths-internationalisation-higher-education

Lack of Legal Advice given to Illegal Immigrants

In an article in the Irish Independent last Tuesday, the 10^th July, the author describes how many illegal immigrants detained in Northern Ireland are not receiving proper legal council. Reports have shown that the number of people being detained has risen by almost 75% since the stricter border patrol enforcement, known as Operation Gull, was introduced six years ago. While many of those detained are illegal, thus making it within the rights of the state to deport them, a good number have legitimate claims to stay in the state, and they are not receiving proper legal representation to ensure that their rights are being recognized. They arrive without intending to break immigration laws; they have legitimate reasons for wanting to come to the UK. They just lack the language, agency, and voice to make their situations known on a legal stage.

Not only that, but there is a growing concern of ethnic profiling at these ports of entry, and that many people who are being detained without consideration of their situation are being denied their rights because of their ethnicity.

Brophy Solicitors

18.07.12

http://www.independent.ie/breaking-news/national-news/concern-at-illegal-immigrant-advice-3165580.html

Deportation Order for a Chinese National

An article in the Irish Times from Wednesday, 18^th July, reported that a Chinese national, Qing Wu, had lost his High Court challenge. He had received a deportation order in 2009, but he had changed addresses without notifying the Minister, so his notices went unread. He attempted to challenge the deportation order, owing at least in part to the fact that he has an Irish-born child and part because he had not received the deportation orders, but the case was ultimately unsuccessful. The onus was on him to notify the Minister if his circumstances changed. The author reports that by the time the case came to be heard before the High Court, Mr Wu was on a plane to Frankfurt, where he will be further escorted to Beijing.


Brophy Solicitors
18.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0718/1224320307476.html

Médecins Sans Frontières (MSF) Ireland Event for Next Wednesday on Refugees in South Sudan

News coverage has demonstrated that the condition in South Sudan has worsened as we approach the one year anniversary of its secession from Sudan. Médecins Sans Frontières (MSF) Ireland is hosting a free event on 18^th July at the Royal Irish Academy, Academy House, 19 Dawson Street, Dublin 2 at 6.30pm. This event will address the growing refugee crisis in South Sudan, accompanied with photographs and highlights of MSF projects. Jane-Anne McKenna, head of the MSF Ireland office, has just returned from nearly a month in the region, and she will comment on her experience, as well as the work that MSF has done there, and hopes to achieve in the future. The event promises to be a powerful statement on the lives of refugees, and interesting to observe from an immigration standpoint. Many immigrants from East Africa are arriving in Ireland to seek asylum, and it is important to understand where they have come from.

The event is free, but donations will be accepted for the South Sudan Emergency Appeal. For more information, please visit: www.msf.ie/south-sudan-appeal.

http://www.activelink.ie/node/9553

Brophy Solicitors

12.07.12 

Testing times for citizenship exam as Conservatives seek overhaul

An article in the Irish times today, entitled “Testing times for citizenship exam as Conservatives seek overhaul” discussed the nature of the UK citizenship exam.

Despite insistence that history questions would prove to be unfair, considering the fact that many UK citizens by birthright wouldn’t be able to answer the questions themselves, Conservative home secretary Theresa May insisted that questions that concerned England’s history were important, because it would clue in the immigrants about what type of culture they were attempting to join. There is a high success rate on the citizenship test among English-speaking applicants, such as those from New Zealand, Canada, and the United States. Applicants from non-English speaking countries, such as Turkey, Bangladesh, and Afghanistan, had nearly a 50% success rate, but this is nothing compared to what Bernard Crick, drafter of the first UK citizenship test, fears for his fellow countrymen. “Could any test for immigrants be devised that 80 per cent of our fellow citizens would not fail?”

He raises an interesting point. Should the test be tailored specifically to be easier for those more unfamiliar with British culture? Or should more specific details be included, because the UK does not want naturalized citizens who don’t know the answers? The article mentions how Channel 4 put out some of the questions to viewers, and the results were  dismal.

It appears May is reacting to a fear of British culture being usurped by the culture of the incomers. “Immigrants must integrate,” the article boldly states. The UK has a history of sheltering those who need it, and critics believe that this tolerance has been exacerbated by immigrants who would come in and demand that England accommodate their culture, instead of the other way around. At the end of the article, frustration at an apparent injustice was evident. “Local authorities have bent over backwards to translate documents into several languages, while Christians have been admonished, or worse, for wearing crosses at work.” The point is this: why is it at once okay for an aspect of a foreign culture, the language, to be recognized, but those who try and demonstrate an aspect of English culture, Christianity, aren’t tolerated?

Brophy Solicitors

06..07.12 

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12

European Commission Report on Immigration and Asylum

The European Commission last week published its annual report  into immigration and asylum in the EU. This is the third year the Commission has reported on this area, responding to a request from the European Council to track the main developments at EU and national levels.

To be welcomed are the positive public attitudes towards the protection of asylum seekers and internal migration within the EU and the overall conclusion of the report that migration is essential for the enhancement of the EU, despite current economic recessionary pressures.

With respect of asylum, in the year 2011, the EU experienced an increase of 16.2% in asylum applications. The report notes that this increase reflected the dramatic events of the Arab Spring. In terms of public attitudes towards those seeking asylum, a sizeable 80% of those polled believe that EU Member States should offer protection and asylum to those in need.

The report identifies the achievement of a Common European Asylum System in 2012 as a key aim of the EU. However, to the outside observer, conflicting political priorities and standards across EU Member States appear to make fulfilment of that goal a long way off. Indeed, a recent opinion piece in the Irish Times by Sue Conlon of the Irish Refugee Council notes the serious shortcomings and disparities in our own asylum appeals system.

With respect of migration within the EU, 67% of those polled for the report that travelling within the EU without internal border controls is important to them. The report highlights that Schengen, as an area without internal border controls, is one of the principal pillars of the EU and has facilitated travel for over 400 million Europeans in 26 countries.

The report is careful to place the EU's migratory situation in the wider global context, noting that just 9.4% (around 20.2 million) of the world's migrants are third-country nationals residing in the EU.

Overall, the report reflects our own view that migration can be an enriching experience for EU Member States. Indeed, the report found that public attitudes towards migration and asylum are generally positive. As the report concludes: “Migration is and will continue to be an essential enhancement for the EU, not only in economic terms, but also in respect to the social and cultural aspects of our societies. Understandably, it has also contributed to certain perceptions which need to be aired through open and balanced debates, not dominated solely by anti-immigration rhetoric. Whilst the downsides of migration are often widely reported, one should not forget the positive contributions that migration brings and will need to bring in order for the EU to grow and continue to thrive.”

Brophy Solicitors

03.06.12 

Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

M.T.T.K (Democratic Republic of Congo) v Refugee Appeals Tribunal & Ors [2012 IEHC 155]

This case concerned an application for judicial review in respect of a decision by the Refugee Appeals Tribunal, affirming a recommendation by ORAC, not to grant the applicant refugee status.

The applicant claims to be a national of the Democratic Republic of Congo. He applied for asylum in February 2006 based on his fear of persecution arising from his race, political opinion and membership of a social group. He alleged that he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having Rwandan connections. The applicant claimed he was jailed and tortured by the DRC authorities in 2004 for purportedly supporting the Rwandan Government. The applicant escaped to Rwanda but was arrested for having no documents and was detained until January 2006. He then travelled to Ireland where the ORAC refused him refugee status in December 2006 and the RAT rejected his appeal as they did not believe his narrative.

Hogan J granted leave on a number of grounds that centred around three issues:

     (1) Risk of persecution based on ethnic origin or perceived connections to Rwanda.

It was clear to the tribunal member that the applicants alleged ethnicity was a distinct and separate point warranting individual consideration. The tribunal member failed to weigh the merits of the claim and the applicant’s lack of credibility did not justify this failure.  An ambiguity does not suffice as evidence of acceptance of ethnicity or Rwandan affiliation.  However, the court went onto conclude that in any case this matter ought to have been considered by the RAT and their failure to do so meant the decision could not stand.

  

     (2) The risk arising to the applicant by virtue of his position as a failed asylum seeker.

The High Court held that the RAT failed to consider this issue. It was expressed in previous case law that failed asylum seekers are not members of a social group and so particularly cogent evidence is required to quash an RAT decision on this issue. The court considered a number of documents in examining the credibility of the applicant’s evidence. Although some documents appeared one-sided and unsubstantiated, a UNHCR article did state that failed asylum seekers are at risk upon their return to DRC by virtue of their ethnicity. The failure of the RAT to adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining to examine the consequences of being returned to the DRC as a failed asylum seeker was of such a nature to warrant setting aside the decision in this case.

    (3) Benefit the applicant is entitled  to derive from the South African immigration system by virtue of his marriage to a citizen of that country

The High Court agreed wit the tribunal that it is questionable that the applicant never attempted to seek asylum in South Africa, given his marital connections to that country. The court held that the tribunal member went far beyond the question of the applicant’s credibility when he made a number of assumptions about South African immigration law, without supporting these conclusions by reference to the law or policy of South Africa. The applicant may be entitled to such benefit but there is nothing in this decision to support this proposition nor was it put to the applicant. The court therefore cannot presume to rely on this decision and so the conclusion was unreasonably made.

On the basis of these three grounds the High Court granted the applicant an order of certiorari quashing the decision of the RAT, remitted the matter for rehearing and to hear submissions in relation to an injunction restraining the respondent from denying the applicant refugee status and deporting him.     

Brophy Solicitors

30.05.12  

Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

Case Study: Sivsivadze & Ors v Minister for Justice and Equality & Ors [2012] IEHC 137

The applicants in these judicial review proceedings sought to challenge a decision by the Minster to refuse to revoke a deportation order made in respect of the fourth named applicant, Davit Arabuli.

The principal ground for this application is that s 3 of the Immigration Act 1999 is unconstitutional as it imposes a lifelong ban on a person subject to a deportation order, which amounts to disproportionate interference with the applicant's right to family life under article 41 of the Constitution. The constitutionality of s 3 has never been challenged before. The applicants also sought a declaration of incompatibility pursuant to s 5(2) of the European Convention of Human Rights in that allowing for a deportation order of indefinite duration violates the applicants right to family life under article 8 of the Convention.

The fourth named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who used the alias Datia Toidze, was refused asylum and a deportation order was issued in respect of him in December 2001. He failed to report to the GNIB in respect of the order and was classified as an evader. Mr Arabuli managed to remain present in the state until November 2011. In the meantime Mr Arabuli began a romantic relationship with first named applicant in 2003. Their first child was born to them in April 2005 and their second child was born in August 2009. They married in July 2009. Their children are not classified as Irish citizens.

Mr Arabuli made a number of applications to revoke his deportation order during this time but the deportation order was affirmed. In October 2011 the applicant was arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli admitted that the name Toidze that he had been consistently using throughout his time within the state was simply an alias. The applicant was deported in November 2011.

Under s 3 if a deportation order is made, it must be for an indefinite duration save that the Minister can revoke the order pursuant to s 3(11) at any time. The real question is whether the existence of a sanction that is potentially life long in duration is essential in circumstances where the applicants have real and substantial ties with the state

The European Court of Human Rights regards deportation orders of unlimited duration as raising serious Article 8 issues. The grant of humanitarian leave to Ms Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to go back to Georgia. The Minister’s decision acknowledged that implementing the deportation order would not be in the best interests of the two children, but failed to expressly weigh it in the balance. The High Court noted previous decisions in which it was stated that such an order of unlimited duration was an overly rigorous measure.

Overall the High Court found that the applicant made out substantial grounds that the application of a deportation order of potentially indefinite duration would infringe Article 8 ECHR, especially having regard to the circumstances of this case.

On the constitutional question, the court applied the three-pronged test of proportionality propounded by Costello J in Heaney v Ireland. Firstly, legislation that provides for the deportation of persons who have abused immigration laws through deception is connected to important state interests. Secondly, while the deportation order did impair the Article 41 rights of the other family members, it is recognised that it is not possible to have effective control of immigration without the sanction of deportation. The third limb requires the court to consider whether the effect on rights is proportionate to the objective. The question is whether the states interests in effective immigration law requires that a deportation order have indefinite effect.

The High Court found that the applicants raised substantial grounds in respect of both the Constitutional and ECHR grounds in the manner indicated and granted the applicants leave.   

Brophy Solicitors

23.05.12 

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

Unsuccessful Citizenship Application Relying on Zambrano and Common Travel Scheme

Case Study: Jun Yang Zou v Secretary of State for the Home Department [2012] CSOH 78

This case involved the judicial review of a decision of the Secretary of State to refuse the applicant a residence card. The applicant also sought a declaration that she has a right of residence in the UK. 

The applicant, a Chinese national, arrived in the UK in December 1998 with leave to enter as a student until June 2005. The applicant married her partner who arrived in the UK with no valid leave to enter in 2003 and two children were born to them in 2003 and 2007. In May 2011 the applicant applied for a residency card from the UK Border Agency that was refused in September 2011. The applicant now seeks to challenge this refusal.

The basis of the applicant’s claim is that her first son was born in Northern Ireland and so should be viewed as both an Irish and European Union citizen. The applicant’s son had never been to Ireland, but did possess an Irish passport and so the applicant claimed he should be viewed as a EU citizen. It was acknowledged that neither the applicant nor her husband had a right of residence in the UK and that neither of her children acquired British citizenship by virtue of being born there

The applicant relied on the Zambrano decision in claiming that in order for her son to continue to obtain the benefits of the European Union it was necessary for residence and working rights to be granted to the family. The ECJ decided in Zambrano that Article 20 of the TFEU conferred the status of EU citizen on every person holding the nationality of a member state. In distinction with Zambrano, the applicant’s child was not a national of the country for which a right of residence was being made.

The respondent submitted that the Secretary of State’s decision was a correct interpretation of the case. This decision was made on the basis that the applicant’s circumstances did not fall within the scope of Zambrano as the applicant failed to supply evidence that the dependant national was a British citizen. The Dereci judgement was also referred to in that it would be open to the applicant to seek to claim the present rights in the Republic of Ireland as her son’s chosen state of origin.

The applicant also relied on the common travel area arrangements between the UK and the Republic of Ireland under s 1(3) of the Immigration Act in claiming that Irish citizens have a de facto right to reside in the UK and so European citizenship rights can be extended to the member state where they have a de facto right of residence.

The respondent submitted that the terms of the Immigration Act did not apply to the applicant’s son as he had not arrived in the UK from the Republic of Ireland and so was not in a different position to any other citizen of another member state. Even if the common travel scheme rights did apply to the petitioner’s son, these rights arose from domestic legislation, whereas European Citizenship rights arose from the treaty.

The Court of Session accepted that the circumstances in this case differed from those in Zambrano as the applicant’s son was not a UK national. The case therefore has no application to the petitioner’s circumstances. It was noted in Zambrano that the conditions for the acquisition of nationality are for the member state in question to lay down. It is up to the Republic of Ireland to decide whether to grant the applicant’s son citizenship, despite the fact that neither he nor his family has ever visited the country. Even if the applicants son is entitled to EU citizenship by virtue of the same decision, he has not acquired a right of residence in the UK that flows from EU citizenship. The common travel arrangements have no application to the applicant’s son. Accordingly he is neither a UK national nor someone with an identifiable right of residence in this country. The court upheld the decision arrived at by the Secretary of State and refused the applicant’s petition.   

Brophy Solicitors

21.05.12          

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors

18.05.12

                 

Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12

Appeal Granted against Deportation Order on Grounds of Failure to Properly Consider the Appellant’s Circumstances within the State

Deron Peart v Secretary of the State for the Home Department [2012] EWCA Civ 568

This case concerned an appeal against a decision to uphold a deportation order made against the applicant in December 2007. 

The appellant, a Jamaican national, came to the UK in November 1996 when he was eleven years of age on a visitor’s visa and then continued to reside in the UK illegally. His mother resided in the UK since 1994. The appellant entered and remained in education up until 2006 when he was unable to meet the costs of University. In April 2007, the appellant was sentenced to 30 months imprisonment following a plea of guilty to possession of a Class A drug with intent to supply. The appellant was subsequently subject to a deportation order. In the meantime, the appellant entered into a relationship with a UK citizen, Alexis, and their son Ashton, who is also a UK citizen, was born in 2009.

The Secretary of State refused his appeal against the deportation order in July 2009. The first-tier tribunal then allowed his appeal on the grounds that his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the ECHR. This decision was appealed against and a fresh hearing came before the Upper Tribunal, which then dismissed the appeal in 2011.

The grounds of appeal before the Court of Appeal are that the tribunal failed to consider Ashton’s best interests, failed to consider the appellants family and private life, failed to take into account important evidence and failed to consider whether the nature of the appellant’s offending was so serious as to justify his removal. Each ground was considered in turn-

(i) Failure to consider Ashton’s Best Interests-

The Judge in the Upper Tribunal (DIJ Woodcraft) was not convinced that the appellant had a close relationship with Ashton, but in order to do justice to Ashton’s position he should have considered how their relationship might develop in future if the appellant were allowed to remain. The Judge failed to consider the effect that the appellant’s removal would have on Ashton’s welfare and therefore did not give sufficient consideration as to what was in Ashton’s best interests or give his welfare the degree of importance it ought to have received.

(ii) Failure to give proper consideration to family and private life.

Although the judge examined the nature and extent of the appellant’s relationship with the members of his family, he did not draw the strands together in deciding whether his overall removal was proportionate. He also failed to make a significant assessment of his private life despite the fact that he had come to the UK when he was 11 years old and had been living in the country for 14 years. All he said was that the appellant had formed a private life of sorts during his time in the country, but that his failure to regularise his immigration status and his repeat offending outweighed his claim that his private life should be spared from interference.

(iii) Failure to Consider Relevant Evidence

The Judge rejected the appellant’s assertion that he had encountered positive people during his time in custody despite evidence from a prison officer and chaplain that he had made constructive use of his time.

A similar approach was taken to his history of offending. The appellant did have previous convictions for robbery and shoplifting but received a non-custodial sentence in each case. A sentence of 30 months imprisonment following a guilty plea was also at the lower end of the sentences for supplying class A drugs.

As to the prospects of re-offending, his probation report stated that the appellant showed clear signs of having made positive changes and assessed his likelihood of committing further offences as low. The Judge drew on a pre-sentence report but did not refer to the more recent progress report, which could be expected to provide the most reliable evidence of the appellant’s current attitude. The Judge failed to have regard to these important pieces of evidence, or if he did, he failed to properly assess their significance.

(iv) The Maslov principles

In Maslov v Austria the ECHR considered the approach taken by national authorities when considering the deportation of a foreign national on the grounds that his presence constitutes a danger to the community. The court listed a number of factors to be taken into account in assessing whether a deportation is proportionate. In the case of a settled migrant who has spent the major part of his childhood in this country only very serious reasons would justify removal, even if he has been unlawfully present. The Judge did consider some of the factors in Maslov as potentially relevant, but in deciding whether to remove the appellant he failed to have regard to important factors such as the age at which he arrived in the country, the length of his stay and the strength of his social, cultural and family ties within the country.

The Court of Appeal held that the decision of the Upper Tribunal was flawed in the respects identified to such an extent that it could not stand. The appeal was allowed and the matter remitted to the Upper Tribunal with a direction that there be a fresh hearing.  

The full text of the case can be accessed here

Brophy Solicitors

09.05.12

PARENTS OF ROMANIAN AND BULGARIAN NATIONALS WHO ARE PARENTS OF IRISH CITIZEN CHILDREN

We posted a recent blog in respect of a change of policy concerning the right to work for Romanian and Bulgarian nationals who are also parents of Irish citizen children.  As of the 28^th February 2012, such persons shall not require an employment permit to work in Ireland. 

A number of our clients who had applied for employment permits or who had applied to be registered as self-employed with the Department of Jobs, Enterprise and Innovation have received letters from that Department stating that they are entitled to work in the State without an employment permit.  The letter also states that it should be both that Romanian/Bulgarian nationals and their Irish citizen child must be resident in the State as a family unit.

We have also been advised that our applications pending with the Department of Justice and Equality in respect of Romanian/Bulgarian parents of Irish citizen children shall be determined this week and we expect a similar letter shall issue from that Department authorising our clients to work without the need to apply for a permit.

We welcome the Minister’s approach to resolving such cases, which would have no doubt ended in litigation in respect of such person’s entitlement to work in the State.  We shall advise our readers as to the Department of Justice and Equality’s precise position as soon as possible.

Brophy Solicitors

04.05.12

Ahmadiyya Community: Advocate’s General opinion in joined cases of the European Court of Justice; C-71/11 and C-99/11, Bundesrepublik Deutschland v Y & Z

According to Advocate General Bot, a serious infringement of the freedom of religion may constitute an act of persecution where an asylum seeker runs a real risk of being deprived of his most fundamental rights by exercising that freedom. This would be the case where he risks death, inhuman or degrading treatment or of being prosecuted or imprisoned arbitrarily.

The German Federal Administrative Court asked the Court of Justice to set out the circumstances in which an infringement of the right to freedom of religion and in particular of an individuals right to live his faith freely and openly may constitute an act of persecution within the meaning of the directive. This reference arose from a dispute between the German authorities and two Pakistani asylum seekers who are active members of the Ahmadiyya community. This is an Islamic Reformist Movement that the Sunni Muslim majority in Pakistan have long contested and their religious activities are severely restricted by the Pakistan Penal Code. They are unable to profess their faith publicly without their activities being considered to be an act of blasphemy, a charge punishable by imprisonment or even the death penalty.

Directive 2004/83/EC seeks to establish common criteria for all of the member states to recognise the refugee status of asylum seekers within the meaning of Article 1 of the Geneva Convention. Advocate General Bot expressed his opinion that the aim of the common European asylum system is limited to an individual who may be exposed to persecution in his county of origin, which is classed as a serious and intolerable attack on his person and his indefeasible rights. 

Advocate General Bot set out the fundamental nature of the freedom of religion and rejected the idea that only a serious interference with the freedom to manifest one’s religion in private may constitute an at of persecution. The freedom of religion is subject to certain limits in order to maintain religious pluralism and the peaceful coexistence of different beliefs. Certain prohibitions may carry criminal penalties once the penalties are proportionate and determined in compliance with individual liberties. A serious infringement of the freedom of religion may constitute an act of persecution where the asylum seeker runs a real risk of being treated unjustly.

The AG was of the view that the prohibitions in Pakistani law in relation to the situation of the members of the Ahmadiyya community in Pakistan are likely to constitute a serious infringement of the freedom of religion. The penalties may constitute persecution because they aim to deprive any person of his most basic rights if they persist in publicly manifesting their faith by threatening them with imprisonment or death.

The authority responsible for examining an asylum application cannot reasonably expect the applicant to renounce his religious activities to avoid persecution. This would deny him a basic right guaranteed by the convention and also deprive the directive of its effectiveness since it would not protect a person who is exposed to acts of persecution.

Brophy Solicitors

27.04.12 

Case Study: Third Country Nationals who are Long-Term Residents in a EU Member State have the Equal Right to Social Assistance as EU Citizens

It was recently decided by the Court of Justice of the EU in the case of Servet Kamberaj v Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano that EU member state’s are prohibited from implementing legislation which treats third-country nationals who are long-term residents different from EU citizens in relation to the allocation of funds for housing benefit.

The facts of the case are as follows. Mr Kamberaj is an Albanian national who has resided in Italy since 1994. He received housing benefit in Italy from 1998 to 2008 as a holder of a residence permit. This housing benefit was administered by firstly being allocated to EU citizens and then secondly awarded to third country nationals who have lawfully resided in the state for at least five years and worked there for at least three years. However, in 2009 a different method was put in place to allocate funds. The Social Housing Institute of Bolzano then rejected Mr Kameraj’s application under this new method on the grounds that the benefit intended for third country nationals had been exhausted.

Mr Kameraj’s brought a case on the grounds that this refusal amounted to discrimination contrary to Directive 2003/109/EC in relation to third country nationals who are long-term residents. The question of whether this method of allocating housing benefits was discriminatory was then referred to the Court of Justice of the EU.

The court was of the view that this method of allocation would disadvantage third country nationals in being allocated a smaller budget even though they have the same economic needs as those of an EU citizen. The court considered the scope of the directive in relation to social security, assistance and protection. The court found that these aspects of the law fell within the scope of member states to determine and they are permitted to limit the application of equal treatment in respect of social assistance to core benefits. Core benefits must be provided equally to those resident in the state including third country nationals who are long-term residents. The directive does not contain an exhaustive list of core benefits. Therefore housing benefit falls within this list as it relates to the basic need of the individual to accommodation and equal treatment must be applied here.

The right of third country nationals to equal treatment is a general rule and any derogation must be interpreted strictly. The scope of the term core benefits must be interpreted to take into account the objective of the directive to ensure the integration of third country nationals. The Charter of Fundamental Rights must also be considered to determine the scope of core benefit. The Charter recognises such a right to housing assistance to ensure a decent existence for those who lack sufficient resources.

In light of the considerations outlined, the court concluded that EU law precludes a national or regional law which provides for different treatment for third country nationals and nationals of the member state in which they reside, in so far as the housing benefit falls within one of the three fields covered by the principle of equal treatment provided under the directive concerning third-country nationals who are long-term residents and constitutes a core benefit within the meaning of that directive, which are matters for the national court to determine.      

You can read the full judgement here http://curia.europa.eu/juris/document/document.jsf?text=&docid=121961&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1432923

Brophy Solicitors

26.04.12

Political Support for Undocumented Migrants in Ireland.

The annual Labour Party conference took place on the 15^th of April 2012. At this conference the Labour party put forward a motion to support the regularisation of undocumented migrants in Ireland. The conference noted that there is an estimated 30,000 undocumented migrants residing in Ireland today and recognised the undue strain and hardship this caused to these individuals and their families who remain in constant fear of deportation. Many of these families live in poverty as they cannot benefit from basic social services such as health and education. The conference also recognised the isolation they experience within the state, as they are unable to return home to visit family members and friends in their home country, as they fear they risk being unable to return to the state afterwards.

The conference proposed putting in place an Earned Regularisation Scheme. This would involve undocumented peoples being given an opportunity to earn permanent residency over time by adhering to a specified criteria such as working and paying taxes. This would confer benefits both on state and on the undocumented persons by encouraging economic and social integration.            

The Migrants Rights Centre Ireland welcomed this motion by the Labour Party. "This is a very significant step in realising the human rights and dignity of undocumented men, women and children living in Ireland. The passing of this motion recognises that undocumented people are rooted within our communities and demonstrates a commitment to protecting the most vulnerable" said Edel McGinley of the MRCI.

Brophy Solicitors welcomes any initiative moving to recognise the rights of the undocumented worker in Ireland and we appreciate and praise the commitment of the MRCI towards the protection of undocumented workers in the State.

Brophy Solicitors

18.04.12