Migration: A necessary element of the past, present and future in Ireland.

The need for Immigration

The history of the our country is pervaded with tales of migration, from the necessary departure from Irish soil during times of Famine, the Great Depression, recession in the 1980s and of course the current day consequences of the collapse of the Celtic Tiger. Between 1871 and 1961, the average annual net emigration from Ireland consistently exceeded the natural increase in the Irish population, which shrank from about 4.4 million in 1861 to 2.8 million in 1961.[1] With the exception of the 1970s, when, for the first time in Irish history, net migration to Ireland was positive, outflows continued to exceed inflows until the early 1990s.

However migration is not a faucet of our society’s history which completely emanates doom, embodying unhappier times. The 1990s – early 2000s economic boom saw unprecedented levels of prosperity. Ireland experienced a flow of migrant workers, both EU workers and asylum seekers from outside the Union. In 1996, Ireland reached its migration "turning point," making it the last EU Member State to become a country of net immigration. This was a consequence of rapid economic growth which created an unprecedented demand for labour across a wide range of sectors, including construction, financial, information technology, and health care. Unemployment declined from 15.9% in 1993 to a historic low of 3.6% in 2001.[2]

A recent report ‘Migration and the Economy’ compiled by the economist Jim Power, for the Integration Centre (a not - for – profit organisation dedicated to promoting integration) has found that even after the crash, immigrants are playing a vital role in the Irish economy. In fact for Ireland to prosper, it is necessary to promote inward immigration.

This is a stark contrast to the commonly held view that migrants are in fact a burden on the Irish economy.

The report found that foreign born works work at all levels of the economy, most working in lowly paid, service and administrative jobs. In some trades they make up one third of the workforce. The highest number of migrants came from Poland and then from the UK, both EU countries. The report also states that immigration was vital to the Irish economy in the boom years when the unemployment rate fell below 4%. It was commonly agreed that immigration was necessary. However, after the crash in 2008, there were elements in Ireland who said that immigration was unaffordable.

The report stipulates that there is little evidence to support this. It states that immigrants are retraining. There is no evidence of benefits tourism being a motivation for immigration into Ireland.

 'The non-Irish population is highly skilled with qualification levels exceeding that of the foreign population in other EU countries. The overall majority hold professional or trade qualifications. The variety of language skills they hold is vital to the Irish economy…, in short, the immigrant population has been and remains a key asset to the Irish economy.'[3]

The report recommends various measures to encourage immigrants to stay.

·        An improvement to the employment permit system in order to facilitate the recruitment of non EU workers.

·        Improved English training for immigrants.

·        A more streamlined system for recognising foreign qualifications.

·        Greater efforts to attract immigrant entrepreneurs.

·        The enactment of a statutory right to family reunification for victims.

·        Improved anti-racism measures in the workplace.

·        Greater commitment from the Gardai to tacking racist incidents

·        Keeping personal tax levels low to avoid scaring immigrant workers.

It is apparent from recent case law; M.M v minster for Justice Equality and Reform & Attorney General[4], Okunade v Minster for Justice, Equality and Reform & Attorney Genera[5]l,  that an urgent reform of our system of asylum application is required.

 Migration has been an obvious element in attempts to recover in the past, and this is not about to chance. However, in contrast to popular belief, this report commands that rather than encouraging our youth and recent graduates to depart from our shores, we should in fact be more encouraging of people arriving to avail of employment opportunities here.

Brophy Solicitors

4.12.12

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[1] Figures sourced from http://www.migrationinformation.org/Feature/display.cfm?ID=740 retrieved 3.12.12 at 10.18 a.m.

[2]Ibid.

[3] Source :http://www.workpermit.com/news/2012-11-01/irish-report-says-immigration-vital-to-economic-success. Retrieved 3.12.12 at 10.44 a.m.

[4] Case C- 277/11 M.M v minster for Justice Equality and Reform & Attorney General, 22 November 2012.

[5] {2012}IESC 49.

Tackling the Culture of Disbelief in Asylum Claims

Earlier this month, following the Irish refugee council’s report ‘Difficult to believe’, a conference was held on Credibility in asylum claims.

Professor Guy S. Goodwin Gill a senior research fellow and professor of International Refugee law at Oxford University was the keynote speaker.

He spoke about the protection of refugees as “a matter of international obligation”, stressing the importance of “a fair and efficient procedure” in the determination of asylum claims. He highlighted that the 1951 Refugee Convention says nothing about procedures or process leaving its implementation up to the states themselves.

He described how a fair process must include certain essential elements such as a full hearing; appropriate evidential standards; evidence-based decisions and the requirement of a review or appeal.

In terms of establishing the risk of persecution he noted the problems with the onus being placed solely on the applicant and said practical considerations impose a duty on the decision maker.

In discussing the decision in Rustamov  v Russia 2012, the professor asked “what must asylum seekers show?”

In this case,  the Court pointed out that requesting  an applicant “to produce "indisputable" evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.”

The professor asserted that “The Strasbourg court is clearly sending signals about the process of decision-making.”

He also noted that the appreciation of fear of persecution is based on an objective situation and said that the decision-making process requires us to look at a series of variables making it unpredictable.

The professor noted that decision makers can’t ever have absolute confidence in their decisions but insisted that a well established process anchored in International law is needed.

In terms of personal credibility, he noted that although asylum applicants have a duty to tell the truth, there is a duty on decision makers also. He claimed that too little attention is paid to assessment and more attention needed to be paid to form for example early legal assistance, affirming that “this is what experience has taught us”.

The professor said he was pleased to read the IRC report and agreed that the system is not working and is not in compliance with international obligation. He described our system as “a ready-made case-study of what not to do”.

He highlighted how medical evidence is not given any weight in Ireland. In contrast he gave an example of a UK Court of Appeal case in which the applicant was totally lacking in credibility but succeeded on the basis of medical evidence alone.

The professor also discussed decision-makers assumptions, taking for example the claim that you can’t through an airport on a fake passport.

In terms of Appeal and review Professor Goodwin Gill said that it is not enough to say “I do not believe” and described the system as a “world of inferences”. He noted that almost universally a late submission equals a lack of credibility.

He expressed that what we want is a picture of the individual in context, concluding that “The individual needs to be brought back into the picture, back into the realm of international law.”

Justice Catherine McGuiness, who was chairing this discussion added that the “the narrow concept of judicial review opens itself up to a culture of disbelief.”

The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the Director of the centre for post-conflict justice at Trinity. Professor Byrne said that a “serious reconsideration of the system was needed” and that there was reason for significant concern over the low recognition rate here.

She discussed asylum testimony as human rights testimony and noted that “the nature of the asylum seeker as a victim has an impact on the way testimony is presented”.

She expressed the importance of rethinking how we approach credibility.

She mentioned Canadian studies that highlight a “presumptive scepticism” in asylum claims showing that unstated assumptions are driving the process.

She mentioned in particular the problems of the unstated assumption that the motivations of asylum seekers are to deceive the system.

Following this Dr. Jane Herlihy, Executive Director of the centre for the study of Emotion and the Law (CSEL) gave a presentation on psychological evidence in asylum claims. She focused particularly on the diagnosis of post traumatic stress disorder and emphasised that the absence of a diagnosis does not disprove a history of trauma just as the presence of a diagnosis is not evidence of trauma.

Fadela Novak-Irons, the UNHCR Policy Officer for Europe, described the importance of quality in decision making and expressed how credibility was at the core of this process. She highlighted the various challenges faced by the system such as decisions under conditions of uncertainty; Absence of witnesses; General nature of country of origin; human behaviour; the role of memory as well as trauma and vulnerabilities.

She went on to discuss the CREDO project currently been undertaken by the UNHCR and described it as taking a multidisciplinary approach to these issues.

The aim is for the UNHCR to launch new credibility guidelines by 2014.

Brophy Solicitors 

26.11.12

Immigration registration fee increased without warning

This week, the fee required for non EU people who are legal residents in the state to register with the authorities has increased from €150 per person to €300 per person. 

Thousands of immigrants who currently live in Ireland, including international students will be affected.

The Immigrant Council of Ireland have criticized this sudden hike in registration costs saying that: 

“The manner in which the new €300 fee was announced flies in the face of Government commitments to bring in a modern, streamlined and transparent Immigration System and in some cases will see families being forced to pay hundreds of euro more, even before the budget.”

Denise Charlton, Chief Executive of the Immigrant Council of Ireland said:

“The Government is quick to highlight and publicise the progress which has been made on citizenship, visas and in reducing bureaucracy, but this increase which will hit families hard, has effectively been announced by stealth. 

Individuals and families who are legally resident here are being asked out of the blue to dig deeper than ever before.”

Irish registration fees are now amongst the highest in Europe, in Belgium the fee is generally no more than €50, in Italy it is just over €100, with a similar charge in Austria.

http://www.immigrantcouncil.ie/media/press-releases/608-100-overnight-jump-in-immigration-fee-completely-unjust-sudden-announcement-comes-without-notice-or-consultation

Brophy Solicitors

26.11.12

Hungarian Passports for Sale!

The Hungarian government are planning to sell special residency bonds to help pay off the country’s debt.

Hungary has billions of euros worth of foreign currency debt, equivalent to 78% of its annual economic output, with the country’s debt being the highest in Central and Eastern Europe, according to Moody's Investors Service.

The Initiative  aimed  at Chinese investors, would involve spending €250,000  to  the indebted  country in exchange for preferential immigration treatment.

It has been indicated by politicians that  foreign  investors would receive residency and ultimately citizenship.

The concern for other EU countries is that a Hungarian passport  comes with the entitlement to live and work across the EU.

http://rt.com/news/hungary-citizenship-buy-bonds-663/

http://www.telegraph.co.uk/finance/financialcrisis/9644190/Hungary-plans-to-offer-passports-to-investors-buying-its-debt.html

Brophy Solicitors

23.11.12

Should the Ombudsman’s powers of oversight be extended to the areas of immigration and Asylum?

The role of the Office of the Ombudsman is to examine complaints from members of the public who feel they have been unfairly treated by certain public bodies.

Last week, the Ombudsman (Amendment) Act 2012 passed its final stages in the Dáil granting further powers of independent investigation to the Office of the Ombudsman. Some 140 government agencies were added to the list including the third level sector, the National Treatment Purchase Fund, Fas, the Irish Medical Council and the Family Support Agency.

However the agencies that deal with immigration and asylum were expressly omitted. This is a level of oversight that the Department of Justice seems to resist and  has proven to be a contentious issue.

If the Ombudsman were allowed to investigate agencies like the Irish Naturalisation and Immigration Service and the Office of the Refugee Applications Commissioner, it would mean that immigrants and asylum seekers would be able to lodge a complaint with a body independent of the Department of Justice in cases of poor administration. This would be likely to result in more accountability and improved decision making processes in these areas.

Many other European countries have this level of oversight in their equivalent immigration services. For example the UK Parliamentary and Health Service Ombudsman can deal with complaints relating to the Home office including the UK Border Agency and Identity and Passport Service as well as the Immigration Services Commissioner.

While our current Ombudsman Emily O’Reilly has noted that the Ombudsman (Amendment) Act 2012 is an historical milestone for her office, she has said that would like to see the agencies dealing with immigration and asylum come under her offices remit also. She expressed that it was a move that many, including the United Nations have been calling for over the years.

Denise Charlton, chief executive of the Immigrant Council of Ireland (ICI), agreed with Ms. O’Reilly stating that

"The Government's refusal to extend the Ombudsman's role to this area not only leaves people without an independent avenue of complaint in cases of poor administration, but in extreme cases can deny vulnerable migrants access to emergency supports and services," she also noted that

“This failure not only lets down vulnerable migrants, but also a system which has undergone many improvements in recent years."

The ICI has said it intends to ask the Department of Justice to review the current position and meet with the Ombudsman to examine if any interim steps can be taken to extend the protections of her office to those using the Irish Naturalisation and Immigration Service.

The general consensus on this issue seems to be that these Agencies should be held to account in situations of unfair treatment and poor administration like other public bodies.

Minister for Justice and Equality, Alan Shatter, has promised that this issue will be reviewed in future legislation.

http://www.independent.ie/breaking-news/national-news/call-to-widen-ombudsmans-remit-3276911.html

http://www.irishtimes.com/newspaper/breaking/2012/1024/breaking35.html  

Brophy Solicitors

31.10.12

Amnesty International urges Europe to act to help refuges fleeing Syria

Amnesty International has called on EU leaders to take the necessary steps to help the hundreds of thousands of people fleeing Syria.

Over 350,000 refugees have registered or are awaiting registration in Syria’s neighboring countries- namely Turkey, Lebanon, Jordan and Iraq.

 It has been predicted that over 700,000 refugees will have fled to Syria’s neighbors by the years end. Conversely, the EU has only received 16,500 Syrian asylum seekers. 

Amnesty have advised that the EU implement the following measures to alleviate this crisis:

•    Ensure access to protection and fair asylum procedures for all Syrian asylum-seekers arriving in the EU

•    Ensure no refugees are returned to Syria until the situation has stabilized and their safety can be assured

•    Agree a common EU approach towards determining refugee claims

•    Adopt a generous interpretation of international protection

•    Lift obstacles to safety, such as visa requirements and overly burdensome family reunification procedures

 www.amnesty.org/en/news/europe-act-now-help-refugees-fleeing-syria-2012-10-24

Brophy Solicitors

30.10.12

INIS update guidelines for migrant victims of domestic abuse

The Irish Naturalization and Immigration Service (INIS) have updated their guidelines for migrant victims of domestic abuse. The revised guidelines no longer require the parties to be living apart in order to apply for independent immigration status.

These new guidelines have been welcomed by the domestic violence coalition that is comprised of the Immigrant Council of Ireland;  Nasc; the Irish Immigrant Support Centre; Women’s Aid; Sonas Housing; Doras Luimní; Longford Women’s Link; AkiDwA; and the Domestic Violence Advocacy Service.

However Mr. Brian Killoran of the Immigrant Council has said that a number of issues remain to be resolved in relation to the new guidelines.

“We are still unclear as to the types of immigration status that will be issued to victims of domestic violence, and the rights and entitlements that these status types will give those who are in very vulnerable, dangerous situations,” he said. “We would urge the INIS to positively use its discretion to grant an immigration status to victims of domestic violence that allows for clear access to the labor market and to emergency supports. In the past, we have found that the lack of clear guidance and direction has prevented some victims of domestic violence from accessing help.”

The Coalition has advised that they will continue to work with INIS in addressing the outstanding concerns.

http://www.pila.ie/bulletin/october-2012/17-october-2012/guidelines-for-migrant-victims-of-domestic-abuse-updated-child-s-right-to-company-of-his-parents-prevents-father-s-depor/

http://www.nascireland.org/latest-news/3576/

Brophy Solicitors

30.10.12 

“Urgent Review” of Asylum Process is required

In their report “Difficult to Believe: the assessment of asylum claims in Ireland”  the Irish Refugee Council call for an “urgent review” of the entire asylum process. The vast majority of asylum cases in this country are refused with only 5% of applicants being granted protection despite apparently legitimate claims.

The report criticises the decision makers in Asylum applications and appeals. Their main concern is a “culture of disbelief” that permeates the asylum system that seemingly results in many applications not receiving fair consideration. The number of successful asylum seekers in Ireland is less than half the EU average according to the report. Conversely, the UK granted just over one in five of the applications decided in the same year (22%) This is four times the amount afforded protection in Ireland.

Sue Conlan. chief executive of the council, said the study had been carried out “to get a better understanding of why the majority of applications for refugee status in this country are refused”.

The report concluded that the application and appeal processes themselves were behind the low acceptance rate here.

“Particularly where the Tribunal is concerned there are reasons to believe that there is a ’culture of disbelief’ that informs the approach that some Tribunal members take.”

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325339068.html   

Brophy Solicitors

23.10.12

UN High Commissioner for Refugees criticizes our Asylum system

Antonio Guterres, UN High commissioner for Refugees has said that Ireland would benefit from a simpler asylum process. Ireland has one of the lowest numbers of successful asylum applications in the EU.

He was in talks last week with the Department of Justice and Equality  that  “in relation to potential improvements in the Irish asylum system, namely the possibility, through legislation, of the simplification of procedures”.

He mentioned that sought also to “improve the quality of the decisions”.

He noted that “In Ireland, I would say that the tradition is of a very strict approach to these things and what is now being discussed is how to have a more nuanced approach.”

In addition he expressed “deep gratitude and appreciation” of Irelands continued support of his office despite  its economic difficulties.

http://www.irishtimes.com/newspaper/ireland/2012/1012/1224325187869.html

Brophy Solicitors

19.10.12

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

Asylum children in 'extreme poverty'

Brophy Solicitors would like to take this opportunity to commend the IRC (Irish Refugee Council) on their report into the living conditions of young adults and children in direct provision accommodation within the State.

The report was published today and highlights issues which arise with direct accommodation for asylum seekers. The report found that there were numerous reports of malnutrition amongst young women and expectant mothers.

Within its report the IRC highlighted one particular case from a Mayo accommodation center that once a child reached six months, no more baby or toddler foods would be provided and the children would only be supplied with food “consistent with the rest of the residents”.

Brophy Solicitors

18.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0918/breaking39.html

Tamils to be deported despite clear torture evidence

An article in the UK Guardian from Friday, 14^th September, reports that the UK intends to move forward with a mass deportation of Tamils to Sri Lanka next week. Many of them arrived in the State to claim asylum, describing accounts of torture and ill-treatment.

Human rights organizations Freedom from Torture and Human Rights Watch both have corroborated those statements, arguing that “the government has severely underestimated this possibility [of torture] when it comes to returned Tamils, many of whom are routinely arrested and questioned about links with the Liberation Tigers of Tamil Eelam (LTTE) and activities in the UK, with torture often playing a part.” The UK Guardian has previously reported about aTamil man who had been refused asylum in the UK and tortured upon his return to Sri Lanka. Despite this, the UK Border Agency refuses to discuss the flights that are scheduled to deport the Tamils until after they have taken off.

Freedom from Torture notes, “This rate of referrals involving torture following return from the UK to a particular country is, to the best of our knowledge, unprecedented since Freedom from Torture was founded in 1985.”

A UK Border Spokesman said, “The UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country. We only undertake returns to Sri Lanka when we are satisfied that the individual has no international protection needs. The European Court of Human Rights has ruled that not all Tamil asylum seekers require protection.”

The head of Human Rights Watch, David Mepham, has said that HRW has documented a series of cases where failed asylum seekers from Tamil have faced torture or serious threats of torture upon their return to Sri Lanka. He recommended, “Given the very serious risk of torture facing many Tamils returned from this country, the UK should immediately impose a moratorium on these returns, pending a thorough review of UK policy in this area and the introduction of new assessment guidelines.”

At this point, it appears that the flights will go ahead as scheduled, but hopefully in the future, the UK Border Agency will more carefully review each case to prevent Tamils being returned to a situation where they would face torture or inhuman or degrading treatment or punishment.

Brophy Solicitors

17.09.12

http://www.guardian.co.uk/uk/2012/sep/14/tamils-deported-despite-torture-evidence

Shatter defers closure of Galway asylum-seeker centre

We recently reported about the order to close down an asylum-seeker centre in Galway, entitled the Lisbrook Centre (incorrectly referenced in the article as the Lisburn Centre). The Minister for Justice Alan Shatter has deferred this closing order so that he may review the motivations, reports the Irish Times in an article from Thursday, 13^th September.

In earlier articles about the issue, authorities have reported that the centre was ordered to be closed because of a falling number of asylum seekers requiring accommodation in the State, and budgets were tight. However, that does not change the fact that there are still hundreds of asylum seekers depending on direct accommodation facilities such as the Lisbrook Centre while they wait for the determination of their application. The article reports that some have waited for up to four years on the determination of their application, and many have moved up to nine times as they await a decision.

School has just started and many young asylum seekers have begun studying at a local school. They have just settled in and hope to integrate, and the Labour Galway West TD Derek Nolan cited the closure as a “terrible way to treat people.”

Local residents who support the maintenance of the Lisbrook Centre have heavily criticized the closure decision, and they intend to move forward with the planned rally in Galway on Saturday.

Hopefully the Minister reviews the decision to close the centre and quashes it, allowing many refugees who have already suffered unimaginable trials a renewed sense of welcome and security in the State.

14.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0913/1224323959445.html

Bernardo’s chief: in the best interests of the children

An article from Tuesday, 11^th September in the UK Guardian described the efforts of Anne Marie Carrie, the chief of Barnardo’s. It is an accommodation centre for families who have been refused asylum and are waiting to be deported back to their home countries. She says that her organization comes under fire often, from anti child detention organizations, but she claims that keeping the children with their families, even if it is in a detention centre, is far better than the alternative, which is to split up the families as they wait and send the children to foster homes to await deportation.

She also acts as a crucial voice for these families, as their rights are commonly ignored. She is unafraid to call the necessary authorities to ensure that the rights of the families are looked after, even though the State has denied them official protection. “If not us, then who?” she commonly asks.

Barnardo’s is a service at Cedars, the “pre-departure accommodation centre” that provides accommodation for failed asylum seekers. At the onset, Barnardo’s established a set of “red lines” that could not be crossed regarding the rights of refugees. Once crossed, Carrie took action. She raises concerns every time she believes the rights of refugees have been breached, and her voice is a valuable one to these vulnerable families.

Brophy Solicitors

12.09.12

http://www.guardian.co.uk/society/2012/sep/11/barnardos-chief-social-care-asylum-seekers

Closure of asylum seeker centre criticised

An article in the Irish Times from Monday, 10^th September, discussed the closure of the Lisbrook centre, formerly the Ibis Hotel, which accommodates several hundred asylum seekers and their families. These families are now set to be relocated to other refugee accommodation centres around Ireland, but the individual relocation sites have yet to be determined.

This closure puts an already vulnerable population at additional risk. Refugees who were housed at the Lisbrook centre have endured many trials in their journey to Ireland, and they settled at the centre with the hopes that they could begin anew in Ireland. Now, as the families face uprooting, parents are worried about their children having to switch schools, communities face the loss of neighbours, and weary refugees have to face yet another move. The closure happening in mid-September shows additional lack of consideration for school children who may be already settled into a new school.

Many of the refugees were too frightened to have their names quoted in the newspaper, but they anonymously reported “serious trauma,” especially since some of them have already spent time in eight different provision centres. They were hoping to finally settle down in Lisbrook, only to find that they had to relocate once again.

The community in Galway is outraged as well. Labour TD for Galway West, Derek Nolan, said it’s a “terrible way to treat people,” and he promised to contact the Department of Justice to discover why the centre has been closed. The information provided to the refugees about their future provisions is frustratingly vague so many families are still left questioning what the future holds for them. The criticism that has risen as a result of this closure should demonstrate to the Department of Justice, and the Reception and Integration Agency, the organization responsible for direct provision accommodation, that a more stable living situation is crucial for this population of asylum seekers.

An article from 11^th September describes how an anti-racist group has appealed to Mr Alan Shatter, Minister for Justice, to review and hopefully quash the decision to close the centre. The Department have stated that “Lisbrook is closing as part of an ‘ongoing consolidation’ of accommodation for asylum seekers across the State.” However, an organization against Galway called “Residents Against Racism” has appealed to the Minister to review the decision to close the centre.

Brophy Solicitors

11.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0910/1224323799097.html

http://www.irishtimes.com/newspaper/ireland/2012/0911/1224323846858.html

Award to migrant quashed over illegal status

In 2002, Mohammad Younis arrived in the state from Pakistan to work as a chef in the restaurant Poppadom in Dublin, owned by his cousin, Amjad Hussein. Since then, Mr. Younis alleged that he has been grossly mistreated, working seven days a week with no holidays to earn “pocket money,” paid in cash. He has been undocumented since his original work permit expired in 2003, and he claims that Mr. Hussein has retained his Pakistani passport. In 2011, the Labour Court found that he had been exploited, and awarded him €92,000, including over €86,000 in back pay since September 2002. Mr. Hussein appealed this decision, stating that he wasn’t properly legally represented in the original trial, Mr. Younis had made false claims in the original trial and that the counsel had just accepted whatever story they were told without investigating the veracity. He also claimed that Mr. Younis was well aware of his undocumented status, and had the opportunity to return to Pakistan at any point.

Yesterday, the High Court ruled that the award must be quashed because of Mr. Younis’s illegal status in the State.  Mr. Justice Gerard Hogan, who delivered the opinion, acknowledged that Mr. Younis had been “the victim of the most appalling exploitation by his employer,” but that “While this conclusion seems to me to be inescapable on the application of established legal principles, it is not a result which yields much satisfaction.” In 2003, the Oireachtas ruled that “a contract of employment involving a non-national was substantively illegal in the absence of a permit.” Mr. Justice Hogan felt obliged, therefore, to quash the award, since Mr. Younis had been working here illegally, but he sent a copy of his judgment over to the  “Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Employment” for review, since the judge believes that the original policy of 2003 was not intended to be used as a an excuse to exploit illegal workers.

There are several articles from the Irish times reporting on this decision from the High Court, and they discuss the potentially devastating effect of this ruling on illegal workers in the State. Mr. Justice Hogan stated, “If, however, that legislation [the policy of 2003] is applied in a rigorous and unyielding manner it might have serious consequences for vulnerable migrants who found themselves exploited by unscrupulous employers.”

Brophy Solicitors

05.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0831/breaking38.html

http://www.irishtimes.com/newspaper/ireland/2012/0901/1224323461795.html

http://www.irishtimes.com/newspaper/ireland/2012/0901/1224323461756.html

Academic refugees(UK): ‘My hope is to contribute to this country—if I’m given the opportunity.’

In the UK Guardian from August 31, a refugee from Algeria gives a first-person account of her journey to England. She details her early educational success in Algeria, and how she gained the equivalent of a Masters degree, but the political activism of her country resulted in her apartment being ransacked, and her family receiving death threats. She was forced to leave the country in 2003, following her husband, who she described as “a journalist and vocal opponent of the rise of fundamentalism,” and who had left in 2003.

She and her family were relocated to Swansea in Wales, in a disadvantaged area. They suffered through culture shock, racist attacks, and hostilities from their neighbours, but  she said they were forced to remain there with their small children until 2007. She reports that she and her husband have resumed their work and research as best as possible, and her success has inspired news stories, but she says that she thinks often “about the irony of having left Algeria and fled persecution only to have to suffer racism.” She says that “my hope is to contribute to this county – if I'm given the opportunity.”

Brophy Solicitors

03.09.12

http://www.guardian.co.uk/higher-education-network/blog/2012/aug/31/academic-refugees-latefa-guemar

Assisting our immigration firms can open up the world

An article in the Irish Independent from Thursday, 30^th August, discusses the changing demographic profile in Ireland. Numerous economic and political debates have included the discussion about the “new multi-racial Ireland,” including the potential for “non-Irish nationals to bolster business activity.”

Currently, foreign nationals constitute eleven percent of the nation’s population, and much of this sector is comprised of young, bright college graduates that are eager to begin their own job. The article reports that they have, “on average, progressed to higher levels of education than the Irish population as a whole . . . statistically they are more likely to start their own business. We therefore have within our population a very large group of people who are young, well educated, highly entrepreneurial, and with established networks in foreign countries, but still we do not recognise them as an asset and a wonderful opportunity to expand our international trade.”

Immigrants are valuable trading partners in business because they bring a fresh perspective on the work, as well as new and innovative methodologies and ideas. However, the article admits that issues with language, religion, age, and gender have caused conflicts and difficulties for immigrants attempting to integrate into Irish society and begin working. Not only that, but the very nature of their non-Irish status also presents its own obstacles, which include “a lack of business contracts,  greater difficulty in accessing finance from institutional sources, and an information deficit when it comes to negotiating business regulatory and legal environments.”

The article concludes with recommendations. “What is required in Ireland is targeted intervention promoted through the social networks and media channels favoured by immigrants.” This way, the challenges that are faced by immigrant entrepreneurs can be met and properly faced, so that they may have an easier time establishing their own business and integrating into Irish life. “At a time when Ireland is seeking to build its international trade across the globe, it appears that we have a wonderful resource on our doorstep that is not being proactively utilised.”

Brophy Solicitors

31.08.12

http://www.independent.ie/business/small-business/assisting-our-immigrant-firms-can-open-up-the-world-3214901.html

Language school granted interim injunction against watchdog

An article in the Irish Times from Tuesday, 21^st August 2012 reports that a language school in County Wicklow has been granted “a temporary injunction restraining the National Qualifications Authority of Ireland (NQAI) from striking it off a register of recognised language colleges.” If the college were to lose official accreditation as a language school, there would be severe consequences for incoming students, who could have their visas rendered invalid. To prevent this from happening, Judge McDermott granted an injunction until August 30^th. The NQAI has to review the late completion and implementation of a development plan for the school, to see if it will withdraw recognition or not.

Brophy Solicitors

30.08.12

http://www.irishtimes.com/newspaper/ireland/2012/0821/1224322586164.html

The right to reside for the non-EEA parent of an EU Child

We are working on a number of applications for residence permission for the  non EEEA parent of an EU child resident in the State.

In one particular case, our client is the father and the sole carer of his EU citizen child since the mother returned to home country,  having previously been employed in Ireland.
We submitted an application to the Minister asserting that our client  acquired a derivative right of residence based on his child’s rights under Article 20 of the Treaty of the Functioning of the EU, relying particularly on the Chen judgment, (as the father was working and financially self sufficient while in employment), and also on the case of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08, where the European Court of Justice found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091, a union child’s right to reside and enter education was independent of that child’s parents status, regardless of whether the parent who is a citizen of the union or not, or has ceased to be a migrant worker in the host state. The child’s rights derived directly from the Treaty. A refusal to allow the primary carer parent to reside during the children’s education would deprive the children of their Treaty rights.

On sufficient resources, the Court of Justice indicated as follows;

“in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

The UK position is that Ibrahim and Teixeira parents in the UK are fully entitled to work.  Under the Social Security (Persons from Abroad) Amendment Regulations 2006, they also have a 'right to reside' for the purpose of claiming benefits.   The right to reside based on the Ibrahim/Teixeira cases is now enshrined in the new Immigration (European Economic Area) (Amendment) Regulations 2012 and is not subject to any conditions such as an inability to work or claim benefits.

The Department of Justice have taken a different approach. In the above mentioned case, it has been determined that the Ibrahim and Teixeira cases do apply to our client’s situation and that a right of residence has been established. However, the Minister has granted our client a restricted stamp 3 residence permission (usually issued to dependents), which prohibits our client from working or accessing welfare. As a result, he has lost his job, and is now unable to support himself and his son, and instructs he will have no option but to return to Pakistan with his son.

We believe that the prohibition against work/access to welfare for the sole carer of an EU child who is established in the education systym is at odds with the Ibrahim and Teixera cases, ( both applicants in those cases were welfare dependent), and therefore in breach of EU law. We will keep you updated on developments in this area of EU Free Movement law.

Brophy Solicitors

28.08.12