New Irish programme supporting child asylum seekers; RIPN materials on PILA website

The latest PILA bulletin from 25^th July includes an article that discussing the rights of child asylum seekers. The Minister for Children has introduced a program entitled “One Good Adult” that will help ease the transition into living in Ireland for child asylum seekers. Each child will be paired up with an adult, who will act as a mentor for him or her and assist them in adapting to life in the State. The report quotes Tanya Ward, stating that, “separated children are alone in Ireland without love, care and solidarity from their families. This project provides them with a person who will walk with them every step of the way on their journey through the care and asylum process ensuring their best interests are taken into account and their voices are heard.” This program is exciting because it will mean that there are less bereft migrant children living in the state with no one to look out for their interests.

Also, the Immigrant Council of Ireland (ICI) has called for a reform on immigration processes that affect children. The number of migrant children in Ireland is growing significantly, and the immigration and education systems are not adequately equipped to deal with the needs of this growing group. The ICI specifically called for a reform of immigration policies, a review of current tuition fees, and schemes targeted and eliminating xenophobia and racism.

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

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

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 

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 

ROMANIAN AND BULGARIAN PARENTS OF IRISH CITIZEN CHILDREN TO HAVE UNRESTRICTED ACCESS TO THE LABOUR MARKET

We have been informed that a Government decision was reached on the 28^th February last to permit Romanian and Bulgarian parents of Irish citizen children unrestricted access to the Labour Market with immediate effect. We understand that notice of this change will be posted on the Department of Job, Enterprise and Innovation this week.

It seems that this change in the law will be automatic, and immediate; Therefore Romanians and Bulgarian who arrived in the State from 2007 onwards and who are the parents of Irish citizen children will not be required to apply for work permits in order to be legally employed in the State. For those already in employment, they will be automatically regarded as legally employed.

The decision comes following a number of cases, which have recently been issued in the High Court to challenge the State’s policy to exclude Romanian and Bulgarian parents of Irish citizen children from the ambit of the Zambrano judgement. In one such case taken by this office, we claimed on behalf of our client that the State had acted unlawfully in failing to give preference to him, as a citizen of the European Union, over third country nationals in respect of access to the labour market in the State. Furthermore, it was argued that the State had acted unlawfully by discriminating against the applicants as families consisting of Irish citizen children with a Romanian/Bulgarian parents by treating them less favourably in respect of the parent’s access to the labour market when compared with families consisting of an Irish citizen children with a third country national parent.

We very much welcome the State’s change in position to accept that all Romanian/Bulgarian nationals, who are parents of Irish citizen children, must have full access to the Labour Market.

Brophy Solicitors

EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.

The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.

The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.

The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.

The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 

The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.

This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.

Brophy Solicitors

17.02.12

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

Stay on Deportation Order Issued

A Nigerian man has been issued a stay on his deportation in the High Court today, despite alleged deception on his part in relation to his identity as a former male model working for a UK property firm. Mr Justice Hogan issued the stay but stressed that his decision was "exclusively" motivated by the welfare of a child "Baby C". The infant is the child of the woman who has made the aforementioned allegations. The man in question is part of unfinished District Court proceedings in relation to care and custody of this child. The stay on proceedings will hold until the District Court makes a decision. If the man is successful in the District Court, the State must reassess his deportation order on foot of the child’s right to the care and company of her father balanced against a fair immigration system. If he is unsuccessful, the stay on the deportation order will lapse.

The man in question entered the State illegally on another man’s passport but claimed asylum under his own name. The passport had been stolen in Vienna and thus the Nigerian gentleman pled guilty and served a 6-month sentence for handling stolen goods.

After forming a relationship with a professional Irish woman, it transpired he deceived her into thinking he lead an affluent lifestyle as a former male model working for a UK property firm. She had no knowledge of his criminal convictions or his involvement in the asylum process. The baby was born in late 2010 but the relationship had already broken down. The woman claims that the applicant’s interest in guardianship and custody are a mere ploy to aid his immigration issues.

As there seemed no particular hope of reconciliation between the pair, Mr Justice Hogan was of the opinion that should the gentleman be removed from the state, it was reasonable to believe that he would not have any contact with Baby C, thus he granted a stay on these grounds.

Brophy Solicitors

20.1.12

The Issue of Non English Speaking Deponents Swearing Affidavits

A recent article in the Law Society Gazette by David Boughton, a practicing barrister, explores the difficulties encountered by solicitors when swearing affidavits of clients who cannot understand English. He draws attention to a prevalent issue. No provision has been made for any procedure of swearing and filing of affidavits by litigants who speak little or no English in neither rules of court nor legislation as noted by Cooke J of the circumstances of ANM v Refugee Appeals Tribunal. 

The author notes the decision of Cooke J in Saleem v Minister for Justice in deciding on the striking out of an affidavit, which contained an error of communication. The judge recommended, given that the applicant did not speak English at all, the approach of a further procedure to be followed for the swearing of affidavits by such persons. It followed that the affidavit should be sworn in the language the deponent speaks and should then be translated by an appropriately qualified translator with both the original and translated document to be put in evidence as exhibits to an affidavit in English sworn by the translator. This was since adopted in the English courts in 1998.

This "three affidavit" procedure is now in use here in Ireland although some difficulties are obvious - such as the additional cost and expense of translation. Boughton warns though, that a failure to adhere to this procedure may require that proceedings be adjourned  to facilitate the filing of correct affidavits, and with adjournment orders attributing more costs he advises all practitioners to familiarise themselves with the procedures. 

Brophy Solicitors 

05.01.12

UK Immigration Figures Set to Drop

Following the release of Ireland’s falling asylum figures for 2011 comes speculation of a fall due in the number of migrants to the United Kingdom. The Guardian reports today a projected 10% fall in immigration to the UK due to the worsening financial crisis. 


This is still far from the election promise of the Conservative Government of tens of thousands drop in immigration figures. In fact the efforts of the coalition have been severely criticised as making very little headway in regards illegal immigration. Furthermore some new policies on immigration have been seen to hamper economic activity in the UK, such as decreasing the amount of foreign students entering the UK. The UK government remains steadfast in its support of the policies however. 


Read the article in the Guardian examining the difficulties in fulfilling coalition promises of a reduction.  


Brophy Solicitors
04.01.12

High Court Judgement in Naturalization Delay Case

Case Summary; Dana Salman v Minister for Justice and Equality, Judgement of Mr. Justice Kearns of 16.12.2011

This case saw the applicant compelling the Minister to administer a decision in his application for naturalisation. The applicant is a refugee originally from Iran. Application for naturalisation was made in early 2008 – thus a delay of three years and nine months was at issue.

This delay caused severe inconvenience to the applicant; he found he was frequently detained at immigration control when he attempted to travel outside the state and for that reason he stopped travelling. The eve prior to the substantive hearing of the proceedings the applicant was issued with a certificate of naturalisation, therefore the sole matter that was to be determined between the parties was the cost of the proceedings.

It was argued by the applicant that the respondent’s statutory duty to consider the application should not be confused with his discretion as to the outcome of the application. Citing Article 34 of the UN Convention on the Status of Refugees and Stateless Persons, 1951 the applicant accepts that there is no requirement to grant citizenship to refugees but there is an obligation to expedite the process and that this requirement has been ignored in the instant case.

Further the applicant argued that even though the Minister is given no time period by law in which to make a decision, there is nevertheless a duty to make a decision within a reasonable time. It is argued that the above delay is not a reasonable one.

Having taken into account article 9.1.2 of the Constitution, Section 15 of the Irish Nationality and Citizenship Act 1986, the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the Protocol of 1967 Article 34 the court stated that

‘The respondent in the instant case was not granted an unfettered discretion to issue a decision on the applicant’s application at his leisure, or not to issue a decision at all. He was under a duty to exercise his statutory powers in a fair and reasonable manner.’

The court cited Cooke J in the 2010 case of Nearing of 2010;

‘Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case’. 

Having considered this in light of the present circumstances Kearns J found that in this case there was no evidence before the Court of any system in place for dealing with applications for certificates of naturalisation. In particular, the Minister did not indicated specific reasons for delay and refusing to explain the extended period of delay past the average time put forward by the department the court held that there was no evidence that there was in place a fair and rational system for the processing of applications. The court held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded.

Such a decision inspires hope for the many awaiting decisions from the Minister in this regard and  is welcomed as a step forward in decreasing the waiting times. 

Brophy Solicitors

20.12.11

LAUNCH OF EU IMMIGRATION PORTAL

We learnt last week of the launch by the European Commission of the Immigration Portal.

The portal serves as a valuable new resource on immigration rules and law in the European Union specifically for non-EU citizens. It is the outcome of three years development by the European Commission in conjunction with the Migration Policy Group. Information on migration within the EU for EU citizens continues to be available here.

The laws and policies for each of the 27 Member States are detailed on the website, together with links to relevant authorities and support organisations. The Irish section provides a breakdown of the various laws and policies as they apply to family members of non-EU citizens, non-EU workers, students and researchers.

You may also be interested in our new website that will be available soon. This will provide expanded information on immigration laws and policies in Ireland that we hope you will find useful!

Brophy Solicitors

25.11.11