Successes! Visas for spouses of non-EEA national (November 2010)

 

 

We were pleased to report in our weekly update in November some successes! We had several visas granted to spouses of non-EEA nationals and we explained here some of the issues to be addressed in any application.

VISA FOR SPOUSE OF NON-EEA NATIONAL SUCCESS

Many people come to us for assistance in challenging negative decisions on applications for visas for their spouses or other family members to come and join them in the State.  We are pleased to say that this week, we have been successful in a number of applications/appeals that we made on behalf of our clients. 

One client in particular was absolutely distraught when her application for a visa for her non-EU husband to come and join her in Ireland was refused.  As a UK citizen she moved to Ireland to commence employment.  She applied for her husband, who is living outside of the EU to join her.  The reasons for refusal did not make sense to us or to our client and furthermore the decision to refuse was unlawful under the Free Movement of Persons Regulations S.I.656 of 2006 and the Directive on Free Movement 2004/38EC.   We made a lengthy appeal and relied on the entitlement of an ‘accelerated procedure’ that applies to visas for family members of EU nationals who want to make an application to join their family member in the State.  In less than two weeks we were pleased to advise our client that the Visa Office in Dublin approved our appeal and that arrangements would be made for her husband to travel to Ireland within a couple of weeks. 

Visa applications are tricky and we spend considerable time drafting detailed and informative applications supported by a large volume of documentation and essential information.  Spending time on such applications and appeals usually pays off.  We are however hoping to succeed in further visa appeals that we have recently submitted for spouses of Irish nationals.  Unfortunately and to many people’s disbelief such applications tend to be less straightforward and take a considerably longer period of time to progress! As always, we shall keep you informed on any further developments!

19.11.10

Sham marriage? (November 2010)

Unfortunately, this topic has regularly featured in our weekly updates. In mid November, our clients were notified less than two hours before their marriage that it was suspected of being a 'marriage of convenience'. Our weekly update, posted below, was on the topic of so-called sham marriages. We have subsequently been granted leave to challenge the decision in this case and are looking to secure damages for our clients. We will keep you updated. 

 

SHAM MARRIAGE?

We have often spoken about this topic through our website, weekly emails and our seminars. The matter arose in a very direct way this week when our clients were notified by a marriage registrar that their marriage would not be proceeding due to the fact that An Garda Siochana lodged an objection. Our clients were notified less than two hours before they were due to marry.   The objection openly stated that one of our clients was marrying to circumvent immigration laws and was involved in what the Guards call a ‘marriage of convenience.’  

So called ‘Sham marriages’ have hit the news papers again and with these reports comes a hail of investigations, arrests and objections to marriage.  Of course we must protect the integrity of our immigration system but at what expense? By launching an attack on the institution of marriage which, is itself protected by our very own Constitution?  Arguably ‘sham’ marriages in themselves attack the very essence of marriage but the reaction of the State greatly endangers couple who marry for love and marry to establish a meaningful family life in the State.  Our clients are an example of a couple that has been together for almost three years.  They most certainly do not exhibit any of the ‘tell tale’ signs that have been listed as indicatiors for sham marriages by the Department of Social Protection, i.e. a couple who don't speak the same language, a man holding all the documents for a woman, the bride and groom not knowing each other’s address at the interview.  Our clients were mortified, furious and incurred great expense at the decision of the registrar not to marry them.  Their family and friends were shocked and stunned that such an objection could be raised against a couple who prepared for quite a substantial wedding ceremony including many family and friends, some of whom travelled to the State for the celebrations. 

We seek to issue proceedings and challenge the decision of the registrar.  We want a full investigation into the objection raised and we want to challenge the procedure followed by the registrar for marriages.  We also want to address the fact that our clients spent €10,000 on a day that was wasted and ruined.  Not only was their right to marry completely violated but also this incident was an attack on their good character and they are adament that their name is cleared. We are determined to follow this matter through and get justice for our clients who have been so badly mistreated by this State. 

12.11.10

Seminar on “The Free Movement of Workers in Ireland” (November 2010)

Back in November, our immigration team attended a Seminar on 'The Free Movement of Workers in Ireland' which had a full programme of interesting speakers. Our solicitors picked up on some interesting issues that were discussed in the weekly update at the beginning of November.

SEMINAR ON "THE FREE MOVEMENT OF WORKERS IN IRELAND"

This interesting Seminar was hosted by the Irish Representative on the European Network on Free Movement within the EU. It was an opportunity for lawyers and other professionals working within the EU Treaty Rights framework to discuss the current position of EU Treaty Rights law in this State in light of recent developments regarding European Court of Justice judgements and also issues raised by the pending Immigration Residence and Protection 2010 Bill. By coincidence, the seminar was being held at the same time as the Minister of Justice re opened deliberations on the details of the 2010 Bill at the Committee Stage.

Speakers at the seminar included Professor Kay Hailbruibber of the University of Konstanz, Germany, Catherine Cosgrave and Hilkka Becker, senior solicitors of the Immigrant Council of Ireland, Jonathon Tompkin, Director of the Irish Centre of European Law and a number of other notable speakers from the North/South Ministerial Council, FLAC and the Medical Council of Ireland.

The reoccurring point of the seminar was ironically that the major development in the area of law known as “Free Movement of Persons” is that it is shifting away from a requirement for movement. In other words, the case law of the European Court of Justice appears to be moving towards the concept of the EU Treaty rights derive from Union Citizenship itself, rather than from citizens of the Union moving from one member state to another as has traditionally been the case. That movement between states may not be necessary to incur all the rights and entitlements of union citizenship is a very progressive step forward, with huge potential consequences across the EU. For example, all Irish citizen children would be entitled to have their non EU citizen parents reside with them in the State, and so many of the previously deported parents may be entitled to be granted visas to return to the State. In fact, much of our domestic law in respect of Irish citizens rights to family reunification would be called in legal doubt.  We have already highlighted the European Court of Justice case of Gerardo Ruiz Zambrano v Office National de L’Emploi where the advocate general’s opinion confirms this new approach. 

Other issues raised at the seminar was the on going frustrations experienced by all practitioners in respect of the Department of Justice inconsistent decision making, lack of transparency and disregard for general procedural safeguards. The example of the previous policy to prohibit all applicants from working during the EU Treaty Rights Application process was cited, and the subsequent High Court proceedings taken by this office in the case of Decsi v Minister for Justice.

Further matters discussed were access of union citizens and their family members to social welfare benefits from outside of their own state, the habitual residency conditions applied which may prohibit the free movement of citizens, and the particularly complicated situation of Romanian and Bulgarian nationals. Discussions also centred around the proposals in the Immigration Residence and Protection 2010 Bill to define and criminalize marriages of convenience providing for a potential five year sentence on conviction.

Overall, the general consensus at the seminar was that the area of law know as “Free Movement of Persons ” and the EU Treaty Rights which derive therefrom is progressing at a very fast pace by way of European Court of Justice judgements. Meanwhile, at a domestic level, resistance to such changes and general administrative processes at odds with the European law is causing severe infringements of the fundamental rights of countless Union citizens and their family members.

The seminar raised many issues very relevant to a lot of our clients’ cases and our immigration team will follow the upcoming European Court of Justice judgements with much interest. We will keep you updated of the big ones!

05.11.10

One to watch! Zambrano (European Citizenship) EUECJ C34/09 (October 2010)

Following on from our post on the thorny issue of reverse discrimination, in late October our weekly update highlighted the radical opinion of the Advocate-General Sharpston in the the case of Zambrano (European Citizenship) EUECJ C34/09 that is to be determined in the Grand Chamber of the European Court of Justice. We identified the progressive and expansive  interpretation of Articles 18, 20 and 21 of the Treat on the European Union in our post. We'll update you again once the Grand Chamber have issued their decision. No decision has been issued as of the end of January 2011.

ONE TO WATCH!! 

Ruiz Zambrano (European Citizenship) [2010] EUECJ C-34/09 (30 September 2010)

Earlier this month the Advocate-General of the in the Grand Chamber of the European Court of Justice, held that physical movement to a Member State other than the Member State of nationality is not required before residence rights as a citizen of the Union can be invoked – in other words, a right of residence in a Member State is based on citizenship of the Union, a free standing right alongside the concept of free movement between Member States.  Such rights derive directly from the Treaty on the European Union and Article 18 of the Treaty of course provides for the prohibition of discrimination based on nationality and should therefore apply to all citizens of the Union. 

If the Court of Justice accepts the Advocate-General’s opinion, it shall be accepting a significant extension of EU law as the Regulations governing rights of residence will then apply to nationals of the Member State. This would be an exciting development.

22.10.10

Reverse Discrimination - the Down Side to 'Free Movement'? (October 2010)

In late October, our office conducted some research on EU Treaty Rights law and the entitlements under the Directive and Regulations on Free Movement.  We have been closely monitoring developments within the European Court of Justice as this area of the law is dynamic and extremely relevant for many of our clients. There's a clear anomaly where an Irish citizen has different rights to those of an EU national who has moved to Ireland. Further updates will follow! 

REVERSE DISCRIMINATION – THE DOWN SIDE TO ‘FREE MOVEMENT’

The issue of reverse discrimination has been a reality for many Irish citizens who see a clear divide between how they and their family members are treated in comparison to family members of EU nationals who have exercised their right to move to Ireland as another Member State. 

We have received several queries regarding decisions issued by the Visa Office refusing entry into the State for non-EU spouses of Irish nationals.  Such decisions cause great stress and anxiety for many Irish nationals who are angry at the way their cases have been handled by the State. We are currently involved in several cases in which we have submitted weighty appeals and applications in an attempt to re-unite our clients with their spouses. We believe that there is a huge gap in the law and the policy of the Department of Justice and Law Reform (formerly the Department of Justice, ‘Equality’ and Law Reform) regarding spouses of Irish citizens and this must be reviewed. It is apparent that there is an anomaly when applying the principles of EU law in that it seems that a State should protect and uphold the rights of union citizens who have exercised their right of free movement, whilst at the same time failing to afford the same protection to a union citizen of that Member State who has not exercised their rights under Free Movement.   

We invite your feedback and comments on this issue, in particular if you are an Irish national or a spouse of an Irish national with an application or appeal outstanding. We would be happy to hear your experiences and share further insights into this difficult issue. 

22.10.10

EU Treaty Rights and dual nationality (October 2010)

In October, we had initial success of a grant of leave in an EU Treaty Rights case on the issue of dual nationality. Further updates to follow on this point! In the meantime, if you have any questions on this issue, please contact us.  

LEAVE GRANTED IN EU TREATY RIGHTS CASES CONCERNING DUAL NATIONALITY

We are happy to say that we were granted leave this week to issue judicial review proceedings concerning two cases where the issue of dual nationality of the EU person had arisen.

One of the cases concerns the Department’s refusal to grant the spouse of an EU national rights of residency under the Free Movement of Persons Directive 2004/38EC. The Department held that the applicant could not come within the ambit of the Directive as a person (his spouse) who possesses dual nationality cannot claim EU Treaty Rights in the State.   This is an interesting point and we look forward to following the progress of this case when it next appears in court. 

15.10.10

Looking ahead at the new student visa regime (October 2010)

Since our posting below that was sent out in October, the new student visa regime has been introduced. We had a seminar focusing on this new regime in November. See our later postings for further updates on the new regime! Below is a preview of what was coming up ...

NON EEA STUDENTS AND THE NEW REGIME

Having previously acted in an advisory capacity to a student body representing international students in the State, we gained a general overview of the industry set up to attract non-EEA students to study in Ireland.  It is clear that international students generate a huge income and are welcomed to support tourism and to contribute to a diverse culture in Ireland.  The Interdepartmental Committee set up by the Department of Justice, Equality and Law Reform acknowledge the contribution of such students to the State in its booklet concerning the new policies applicable to such students due to come into force in January 2011. 

We are currently researching the new regulations in greater detail however such policies generally aim to establish a rule that non –EEA student permission will be limited to 7 years in total.  There are exceptions and many of the changes will depend on whether a person has been residing in the State as a student for 3 years or 7 years. 

We hope to gain more information about the new policies particularly in relation to the 6-month period for ‘timed out’ students.  Watch this space!! 

  

As always, please send us your comments and opinions.  If there are any issues that you wish us to comment on please do not hesitate in contacting us. 

15.10.10

Change of Status Applications (October 2010)

In October, we gave some tips on applications to change immigration status, for example from Stamp 3 to Stamp 4. As always, we would be interested to hear how applicants are getting on with these applications..

CHANGE OF STATUS APPLICATIONS

The Immigration Section of Brophy Solicitors noticed in October that the Department of Justice, Equality and Law Reform was rather pro-active in issuing decisions on many of our client’s applications for various types of residency.   Such applications include those requesting the Minister to change the applicant’s immigration status for example, from a Stamp 3 to a Stamp 4.  Such an application is rarely successful unless it can be shown that there is a real and genuine offer of employment open to the applicant.  The Minister has the discretion under Section 4 (7) of the Immigration Act, 2004 to vary a person’s status in the State.  We notice that many decisions are based around the likelihood of employment for the applicant and whether he or she can contribute to the economy as well as ensuring that they would not become a burden on the social welfare system.  Given the current financial state of affairs, we expect many immigration decisions to settle around the financial information provided to the Minister in any application. 

05.10.10

Review of Leave to Remain cases? (September 2010)

You may recall that back in August, the Irish Times reported a review by the Department of Justice, of applications for leave to remain that had been pending for five years or more. In our weekly update, we followed up on this with the Department and reported what we found in our weekly update back at the end of September. This is what we said -

‘REVIEW’ OF CASES PENDING LEAVE TO REMAIN

Many of you may be aware of an article that appearedin the Irish Times Newspaper concerning a review of applications for leave to remain that had been pending for five years or more.  The Irish Refugee Council also referred to the review, which was to apply to those persons in the State living in direct provision accommodation, who had applied for asylum prior to December 2005 and who had not yet received a decision on their applications for permission to remain in the State. 

We were somewhat sceptical of such a review in the absence of anything published by the Department of Justice and Law Reform.  Nonetheless we received many queries from many of our existing clients and other applicants who felt that they fell into these criteria for a review.  Such applicants were hopeful that they would receive a positive decision on their applications very soon and we were inundated with calls and emails. 

We followed this matter up directly with the Department and the response we received was less hopeful.  We were advised that the Department review outstanding leave to remain applications on a regular basis and that there has been no recent change in the Department’s position in terms of managing it’s caseload.  The suggestion that persons in the State for more than five years and in direct provision accommodation might have their cases finalised in a favourable way was unfortunately not confirmed.

Many of our clients who applied for leave to remain two or three years ago, have been given a ‘commitment’ by the Department that their case will be determined within a certain time frame.  This position has not changed and we can only advise our clients tand other applicants that their applications should be updated with any relevant or new information and wait patiently for the outcome. 

It was disheartening to see the hope and expectation that many applicants felt when they heard that there was a new policy.  This has turned out not to be the case and these applicants must simply wait for the Minister to determine their applications.   We understand the frustration that applicants go through given that they are unable to avail of employment while they await a decision but we encourage our clients to ensure that the Minister is presented with all appropriate and relevant information prior to making his decision on applications for both leave to remain and subsidiary protection in the State. 

We look forward to hearing any of your comments and experiences on this issue. 

Decisions on Naturalization: Absurd and Illogical? (September 2010)

Back in September, we had good news that one of our Somali clients had been finally granted family reunification for his wife, after a very long wait. And other good news that the husband of an Irish national client was issued with a stamp 4 residency permit. This prompted some thoughts on the difficulties of the Naturalization process in Ireland that we wrote about in our weekly update at the end of September. 

Decisions on Natualization: Absurd and Illogical?

I noticed an article in the Irish Times on the 11^th September last regarding the difficulties applicants encounter in the Naturalization process in this State. An example is cited in the article of a doctor who had worked for eight years in the Irish health service and who was denied naturalization because she had broken a red traffic light on her bicycle. The reason for the refusal being that because she had come to the “adverse attention ” of the Garda, she was not of good character. Absurd and illogical as that seems, the example typifies current situation in Ireland regarding Naturalization. The area is riddled with such absurdities. All going well, the application process will take over two years for determination. We are informed that the applications are dealt with in chronological order, however, this appears to me to be unlikely given that some applicants wait three, four or more years to receive the Minister’s determination. It was previously found in a High Court case that the Minister is not obliged to determine applications within a reasonable time frame, as he is in respect of other applications. The reasoning behind this decision is that Naturalization is a privilege, and not an entitlement. The decision put an end to many delay cases that were being taken for applicants awaiting a determination for up to four or five years. It was more recently found in a High Court case that the Minister is not even obliged to provide the reasons for a refusal of an application for Naturalization. There is no appeal process for Applicants. Basic fair procedures are just not adhered to in any way in respect of Naturalization applications. 

It is very frustrating to say the least for people in this system. For any clients who themselves feel frustrated by this system, I would suggest that they contact the Immigrant Council of Ireland in order to make complaint. This firm is also working hard to bring about some positive changes in the area, through research and lobbying and we would really welcome your comments and experiences to help us do this!

APPLYING FOR IRISH CITIZENSHIP? – A LONG WAIT! (September 2010)

Back in September, we noticed a rise in the queries in on citizenship. Many of our clients expressed worries about the delays they experienced in their applications being decided. We had this to say in our weekly update in September. Our new year update will follow soon! 

APPLYING FOR IRISH CITIZENSHIP? – A LONG WAIT!

Delays can be up to three years in some cases that we are currently working on, however we are sure that many of you know people who have had to endure a greater period of time while waiting for their decision. This is an extremely frustrating ordeal for many of our clients and unfortunately given the court’s attitude towards challenging delays on citizenship applications, the only realistic way forward is to communicate with the Citizenship Section and put pressure on them to get a decision as soon as possible.   Last term, the court refused to grant leave in several cases where there appeared to be unreasonable delays in granting a decision on citizenship/naturalisation applications. 

We are looking into this area in more detail as we have been in contact with the Immigrant Council of Ireland (ICI) in the hope of providing case studies concerning many citizenship issues including reasons for refusal.   We are contacting our clients who have made such applications to arrange case study material for the ICI who wish to look at delays, reasons for applying to be an Irish citizen and statistics.  We hope that this will give us a greater insight and a broader picture of the area as a whole and we look forward to seeing the results!

If you have any comments on this issue of citizenship please let as know – we are always interested in hearing your concerns and providing any useful updates in our future postings. 

EU Treaty Rights Update (September 2010)

Welcome to our first posting! We are starting with our update on EU Treaty Rights that was in our weekly newsletter in September 2010. We will be posting weekly updates on immigration matters and we welcome your comments! 

EU TREATY RIGHTS OBSERVATIONS 

This area of immigration law often presents complex matters. As we continue to progress and research these particular cases, many of our EU Treaty Rights clients have concerns relating to their permanent residency in the State after having been granted the EU Family Card.  What happens when there are marital difficulties and the couple separate? 

It is important to note that the Long Term Residency Section does not deal with cases whereby the applicant has 60 months of Stamp 4 granted to them by  virtue of their marriage to an EU national. The Long Term Residency Section pass any such applications to the EU Treaty Rights Section and this is where the difficulty begins! 

From our recent correspondences, the EU Treaty Rights Section currently seems to be indicating that in order to avail of Permanent Residency under Directive 2004/38EC, spouses must complete Form EU3 (the application form for permanent residency after having resided with the EU spouse for five years).  This is of course impossible when the EU spouse has left the State or has re-located to another address and will not sign the form.   

We received a range of contradictory information from the EU Treaty Rights Section and we are following this matter up with the Department on an individual client basis as well as on a more general footing and shall keep you posted on our blog as to any further developments!

Unfortunately we are also experiencing delays on part of the Department in terms of the initial Form EU 1 applications as well as reviews of negative decisions. This makes for a difficult and anxious time for many of our clients who patiently await their temporary Stamp 4 – we have sought to challenge these delays by issuing court proceedings on the basis of breach of the applicant’ s rights under the Directive 2004/38/EC and the Regulations implementing the Directive. Hopefully this won’t be necessary and our clients can avail of their right to work as soon as possible!