The Ankara Agreement: How does it affect Turkish workers in Ireland?

THE RIGHTS OF TURKISH WORKERS 

Turkish nationals residing in EU Member States may enjoy specific protections that are distinct from those available to EEA nationals and non-EEA nationals. The Ankara Agreement was signed on 12^th September 1963 and an Association Council makes Decisions that ensure that the Agreement is effected. The Agreement, its Additional Protocol and Decisions of the Association Council are part of European Union law. The European Court of Justice has decided that these give specific rights to Turkish nationals and businesses which the EU Member States are required by European Union law to respect.

Of particular interest is Decision 80/1 that sets out protections of Turkish workers. The Decision ensures that Turkish workers enjoy what may be described as preferential treatment to non-EEA nationals when seeking access to employment in a Member State.

The provisions as they relate to the freedom of movement of Turkish workers are set out in Article 6 of the Decision. Under this Article, a Turkish worker who has completed one year’s legal employment in the State has the right to renew his permission to work provided he is working for the same employer and the job is available. After three years of legal employment, lesser restrictions apply to the Turkish national’s access to employment. By the time the Turkish national has completed four years legal employment, they can enjoy free access to employment. There are also specific provisions for family members of Turkish workers included in Decision 80/1.

We have recently been instructed by a Turkish worker and have been carefully considering the proper interpretation of Article 6 as it applies to our client. Our client has been told by the Department of Justice that despite completing three years legal employment, he must obtain a work permit to access employment in the State. As many of you will be aware, there are stringent criteria that must be satisfied in order to secure a work permit. We have therefore argued that these further restrictions should not apply to our client as a Turkish worker who has completed the relevant required period of legal employment. We are arguing that imposition of restrictions on accessing employment including requiring him to obtain a work permit is unlawful and in breach of Decision 80/1.

During the boom years, the Turkish population in Ireland significantly increased as many Turkish workers came over to work, predominantly in construction. We have had first-hand experience of Turkish workers not properly understanding their rights and entitlements and falling undocumented as a result. We are still awaiting a further response from the Department and anticipate that litigation may arise on this little considered area. We hope to bring some clarity to the area in coming months.

Brophy Solicitors

02.06.11

Zambrano Update

POSITIVE RESULT IN ZAMBRANO TYPE CASES

We were delighted to receive positive news from the Department of Justice, Equality and Defence in the last week in respect of some of the recent Zambrano applications we have submitted. The approval letters have indicated that the Minister is granting permission to remain of a three year duration.

However, in one such case,  our client was granted permission to remain in the State and work for five years.   This client was the subject of a deportation order affecting her removal to South Africa along with her nine year old daughter who is also a South African national.  Our client was notified that a deportation order had issued against both she and her non-Irish child in August 2010.  When she initially joined her husband in the State she was granted permission to remain for a short period and was advised by her local immigration officer to apply to the Minister for Justice to extend such permission to reside with her husband and children in the State.  She received no response to her residency application and later instructed a solicitor to apply for leave to remain.  This application was ultimately refused.  She had however, not been served with the signed order that the Minster intended to deport her with her South African child.  Throughout her time in the State she avidly contacted her local TD who raised her case during a parliamentary debate as she and her family had no idea about what was happening with their case.   After discovering there had been a deportation order made, she continued as required, to attend the Garda National Immigration Bureau who had also seized her passport.  She was certain that she and her daughter would be removed from the State at any stage and such uncertainty caused her family great stress and anxiety.  She is the main carer for her Irish son and her daughter while her husband worked to support the family.  

We welcome the Department’s decision to fully implement the ECJ’s decision in ‘Zambrano’ in granting Applicant’s the right to work and reside in the State on the basis of her citizen child. 

The prospect that families may be forced to separate or leave the State is a very stark choice for many parents of Irish citizen children, but prior to the Zambrano decision, this was an unfortunate reality. We are pleased to be having successes in this area and are working on a number of cases that rely on the Zambrano principles beyond the narrow application to parents of minor Irish citizen children, which we will keep you updated on.

Sarah McCoy, Brophy Solicitors

27.05.11

The Long Hard Road to Citizenship

LAUNCH OF ICI REPORT ON NATURALISATION 

On Tuesday last, we attended the launch of an important report by the Immigrant Council of Ireland (ICI): ‘Living in Limbo: Migrants’ Experiences of Applying for Naturalisation in Ireland’. The report was prepared in collaboration with NASC, the Irish Immigrant Support Centre based in Cork. 

The report compiles quantitative and qualitative research including interviews and surveys of those applying for citizenship by way of naturalisation. It also includes a comparative study with legislative and administrative procedures in other countries, including the UK and the US. 

The speakers at the launch highlighted some of the key findings of the report. It was noted that, unlike in other European countries, the only true secure status in Ireland that provides for clear rights and obligations is citizenship. Most of those interviewed for the report saw obtaining citizenship as something to aspire to, that would enable them to participate fully in Irish society and to ultimately ‘belong’. 

In order to become an Irish citizen by way of naturalisation, an applicant must satisfy the statutory eligibility criteria: be over 18 years, be of ‘good character’, have resided lawfully in Ireland for at least five of the previous nine years, including one year continuously immediately prior to the application. What the report found that there were serious shortcomings in how these criteria were applied. 

One area of complaint were the in some cases extraordinary delays experienced in having their applications determined. Similar to our own experiences at Brophy Solicitors, some applicants reported excessive and unreasonable delays of over three years. For one lady Sarah who was interviewed for the ICI report no decision has been forthcoming after four years since her initial application. 

Another area the report highlighted was the lack of clarity on what constitutes ‘good character’. Sister Stanislaus Kennedy, founder of ICI, spoke eloquently of the very harsh and subjective application of this criteria. 

The findings of the report reflect our own experience at Brophy Solicitors. The ‘good character’ criteria is often very stringently, arguably unfairly, applied.  One applicant who was interviewed for the report was initially refused on the basis that he had been questioned in relation to an incident and released without charge – yet it was deemed he had come to the ‘adverse attention’ of An Garda Siochana. 

The report also noted refusals on the basis that an applicant had availed of their entitlement to receive social welfare even for a short period of time. We have been assisting a client recently with challenging a similar refusal. Our client fell ill, lost his job, and applied for social welfare. We have requested an urgent review of the refusal, arguing that the applicant claimed by necessity and that this has no bearing on his good character and he fulfils the statutory criteria. 

At the launch of the report, three migrants presented their own experiences and spoke movingly about the challenges they had faced in applying for citizenship and navigating the Irish immigration system. Each were anxious to become part of Irish society, to continue to contribute but felt disillusioned by the arbitrary application of the eligibility criteria for naturalisation, and the extreme delays in processing the applications. 

We welcome the report and congratulate Catherine Cosgrave and ICI on presenting a clear concise appraisal of the problems that the government need to now address to ensure a fair and transparent road to citizenship in Ireland. We whole-heartedly support the recommendations of the report. 

Brophy Solicitors  

24.05.11

"The McCarthy Case"

JUDGMENT IN CASE C-434/09 / SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT

Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK  Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.  

The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:

“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”

Thus, in the absence of national measures that have the effect of depriving Union Citizens of the genuine enjoyment of the substance of their rights arising by virtue of her status as a Union citizen, such measures have no connection with European Union law and are covered exclusively by national law. 

It is easily interpreted from the Court of Justice’s reasoning that if the UK had taken measures which would infringe upon Ms McCarthy’s genuine enjoyment of her rights as a Union Citizen, this would bring the matter within the domain of European Law. For example, should the UK authorities actually have taken the step to refuse Ms McCarthy’s husband a right of residency under National provisions, without good reason, her rights as a Union citizen would then be infringed and she would have an action in EU Law. Prior to such action by the UK authorities, it seems the Court of Justice will give the UK the benefit of the presumption that they will apply a domestic standard acceptable in European Law terms. Thus, there appears within the judgment a warning to Member States to maintain national measures affecting the citizens of their State such that they do not infringe upon the substance of Union Citizen’s rights.  

It must be accepted that fundamental to these rights of Union Citizens is an entitlement to reside in the Member State of one’s nationality with one’s immediate family members, and additionally, by way of comparison to Directive 2004/38, such dependant family members of one’s spouse/partner. This effectively confirms the Reverse Discrimination argument that we have argued in many of our cases before the High Court – that an Irish citizen cannot properly be treated less favourably under national law than a European Union citizen from another Member State residing in Ireland who can benefit from European Law.

We look forward to any comments or questions you might have on this new decision.

Karen Berkeley, Brophy Solicitors

News flash!

JUDGMENT OF THE ECJ: SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT, CASE C-434/09

A full update on this important case will follow. You can read a summary of this important judgment here. The full judgment is available here. This case involved a preliminary reference from the UK Supreme Court on the following issues: 

1.      Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?

2.      Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’

The Court did not find in favour of the Applicant and in short, concluded as follows:

–        Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

–        Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

While we are still digesting this decision, it obviously raises a number of questions following the decision in Zambrano that also addressed the rights of Union citizens. There appear to be a number of contradictions between the two decisions and you may be interested to look at paragraphs 49 to 50, where Zambrano is specifically considered. 

A further fuller update will follow very shortly! 

Rebecca Keatinge, Brophy Solicitors

What does it mean to be an EU citizen?

THE  EXTENDING ARMS OF UNION CITIZENSHIP

The Zambrano ruling, in simple terms, provides that EU Citizens do not need to move to generate rights of residence and work permits for their parents.  It is of course understood that Member States reserve the right to decide who is a citizen of that particular state by way of either 'jus soli' or 'jus sanguinis.'  This is not the issue.  With the 2004 referendum, the Irish people voted and the outcome provides that citizenship of a person born on the island of Ireland on or after 1 January, 2005 depends on the citizenship of the person's parents at the time of the person's birth or the residency history of one of the parents prior to the birth.

The Zambrano ruling has been the fuel of much academic debate on the concept of what it means to be a citizen of the Union. Who can avail of such rights and entitlements to family reunification, rights of residency and rights to work?  The current requirement of free movement is apparently redundant and it is clear that the model of Union citizenship is slowly but surely casting its shadow over the Member States, asserting its presence and filtering through traditional national policies and norms that were once free from EU interception.    

Ireland has traditionally had a pivotal role in previous ECJ decisions concerning Free Movement and Citizenship of the Union including cases such as 'Metock', 'Akrich' and 'Zhu and Chen.'  It is not surprising that our friends in Europe are keeping a watchful eye on Ireland and how our government and courts will choose to implement the ruling and it's significant ramifications for national immigration law. Ireland made its position clear in making representations in response to Advocate General Sharpston's opinion prior to the decision on Zambrano relying on the 'flood gates' theory.  We are reminded of the State's response in the earlier 'Chen' case, which saw the people turning to the ballot boxes for a referendum in 2004. 

While Minister Alan Shatter has committed to urgently reviewing all existing cases in the State in which Zambrano applies, his public statement on the ruling is also a plain recognition of the wider notion of EU measures and their implementation into the Member States,  something that troubles all Member States:      

'The Zambrano judgment applies EU law to certain situations which had
previously been considered to be internal to a Member State and to be
regulated by national law, not EU law. Indeed, all the Member State
Governments which submitted observations to the European Court of Justice
in the Zambrano case, and the European Commission, submitted that the
provisions of European Union law referred to by the Belgian court in its
reference to the European Court of Justice were not applicable to the
dispute in the main proceedings. However, the Court of Justice ruled
otherwise.'

We anticipate further referrals to the European Court of Justice along with new legislation and policies both to emanate from the EU and Ireland to deal with the array of cases and issues that will arise as a result of Zambrano.  And as the State takes legal advice on dealing with 'Zambrano' type cases at home, the Zambrano ruling is to be appreciated as a landmark recognition of and a strengthening of the citizenship of the Union model which will have consequences and implications on future rulings on our rights and entitlements as citizens of the Union.

Sarah McCoy, Brophy Solicitors

Reflections on Zambrano

ATTENDANCE AT SEMINAR ON THE ZAMBRANO DECISION AND ITS IMPACT ON CONSTITUTIONAL LAW, EU LAW AND IMMIGRATION LAW IN IRELAND

Yesterday evening I attended a seminar on the recent Zambrano judgement, presented by Dr. Stephen Carruthers, Dr. Elaine Fahey and Dr. Fergus Ryan at the Dublin Institute of Technology. 

The speakers addressed some of the many queries that the Zambrano judgement has raised. At the outset, it was acknowledged by all speakers that the judgement is certainly a landmark decision in EU law, and was referred to as being of as much significance as the seminal “Van Gen Den Loos” judgement of 1963, which established the concept of Direct Effect in EU Law.

The speakers discussed the most major development progressed in Zambrano, which is that the Court of Justice has established a source of EU legal rights independent of the “Free Movement” requirement which until now has been a fundamental prerequisite. There followed an interesting discussion on what the parameters of this progressive step might be, which are of course difficult to ascertain at this time.

The speakers pointed out a number of interesting points concerning the Zambrano judgement.

It is set out in a short nine page judgement, and it was suggested that the implication of this being that there may have been much dissent amongst the judges who are required to reach a unanimous determination.

It was also pointed out that Advocate General Sharpstens analysis and conclusions regarding reverse discrimination were avoided by the ECJ and thus we are left with more question s than answers – the obvious question being why can all Irish citizens not now also rely on their Union citizenship rights, and claim all entitlements deriving there from. From an Irish Immigration point of view, such a position would lead to huge changes as currently, Irish citizens' rights in respect of family unity in particular are quite restrictive compared to those protections afforded by Directive 2004/38 to EU citizens of other Member States residing in Ireland.

The speakers also pointed out the unusual sequence of the ECJ’s reasoning in coming to this point of view – in the Metock case, the ECJ deviated from its own previous judgement in Akrich and confirmed that Union citizens family members have entitlements to join the Union Citizen without having to first reside in another Member State. This judgement confirmed the position that Union citizens must exercise free movement in order to trigger their EU Treaty Rights. Furthermore, it was pointed out that the McCarty case should be watched with interest, as the ECJ have been referred queries of the status of dual nationals. It is expected that this might be the next big judgement, which might shed light on many of the questions that Zambrano has left unanswered.

It was pointed out that the judges refrained from assessing the human rights aspects to the case, and particularly the best interest of the child principles and comparisons were made to the recent case of ZH (Tanzania) v Secretary of State for the Home Department.

When discussion was opened to the floor, queries were posed regarding the retrospective aspect of the decision, the expansiveness of the family members that the principles  could be applied to, the importance of the dependency factor, the importance of financial self sufficiency, and so on. 

The speakers gave interesting perspectives on the changes and were most engaging and passionate on the subject. However, ultimately the questions cannot be definitively answered, and it remains to be seen what will happen next… We will be posting any new developments here and welcome any comments or questions you might have.

Karen Berkeley, Brophy Solicitors

Migrant Workers in the Recession

IRISH JOBS FOR IRISH PEOPLE

A number of months ago I very briefly skimmed though one of Ian O’Doherty’s articles in the Irish Times wherein he mocked Gerry Adams, ‘the foreigner,’ coming down here and taking a seat in the Dail at a time when we are trying to keep Irish jobs for Irish people!

As a ‘foreigner’ myself coming from the North of Ireland and working in Dublin, I found O’Doherty’s comments mildly amusing as I thought of myself, for the first time as a foreigner – advising migrants on their rights to reside and work in the State.  Anyway, politics and views on Gerry Adams aside, the recession, as to be expected led to a feeling that we must protect and value OUR workers in the State, the Irish. 

The reality is that migrant workers in Ireland have been dealt a huge blow by the recession.  They are the least likely to be employed and the most susceptible group to exploitation in the work place.  Economic Social Research Institute figures show migrant workers are the hardest hit by the recession and three times more likely to lose their jobs than their Irish counterparts. In 2007, some 345,800 non-Irish were employed. That has now fallen 36 per cent to 220,000, leaving 125,000 people in need of social assistance.  

Statistics show a high percentage of negative decisions against non-Irish people trying to access State services leading to situations of homelessness, theft and awful standards of living.  The majority of cases that we have looked into show that the applicant is entitled to assistance having resided and worked for the appropriate time in the State.  Onerous and subjective habitual residency rules are often misinterpreted and misapplied to a large extent by State officials.  While the rules were put in place to stop ‘welfare tourism’ in Ireland, the current policy calls for urgent review to avoid a situation whereby non-Irish people, the majority of whom are EU citizens, do not fall outside the net when applying for State assistance that they are entitled to.  I do not envy any ‘foreigner’ who has lost their job in Ireland and who seeks assistance for themselves and their family.  Not only are the rules in place extremely complex and burdensome, the appeals and review procedure is something that would certainly deter a person from following through with the process in the first place.

Sarah McCoy, Brophy Solicitors

01.04.11

High Court Challenge in Romanian Case

ROMANIAN AND BULGARIAN NATIONALS

EEA nationals become lawfully resident in other Member State if they exercise their EU Treaty Rights in one of the following ways - work/self employed/study/self sufficient. This is set out in Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). Romanian and Bulgarian nationals are an exception to this general rule because the Irish government opted to place special restrictions on the right to work for Bulgarian/Romanian nationals. Since 1 January 2007 nationals of Romania and Bulgaria, although EU nationals, may be required to have an employment permit for a continuous period of 12 months to work in Ireland.  All Romanian and Bulgarian nationals, other than those who have been resident in the State on a employment permit, expiring on or after 31 December 2006, for a continuous period of 12 months, are required to have employment permits. Applications for work permits for them will be given preference over those for non-EEA nationals. However, the restrictions are specific to employment permits.  Therefore, it seems to be that if the Romanian or Bulgarian national becomes self employed, they avoid the employment permit restrictions and acquire lawful residency on the basis of Directive 2004/38.

This point is currently being challenged in the High Court, in a case taken by Mr Solavastru and family. See Irish Times Article dated 3rd March 2011.

If you have any questions about the position of Romanian and Bulgarian nationals, please post your comment here and we will be happy to answer your queries. 

Karen Berkeley, Brophy Solicitors 

29.03.11

Keeping you up to date on Zambrano

MINISTER SHATTER’S RESPONSE TO ZAMBRANO

The recently appointed Minister for Justice, Equality and Defence, Mr Alan Shatter, has released a statement in response to the ground breaking judgement by the European Court of Justice  in Ruiz Zambrano v Office National De L'Emploi –  (Case C-34/0). 

The Minister has confirmed that the Department of Justice will examine all cases before the courts where parents of Irish citizen children have challenged deportation orders against them. He has confirmed that the Department will also commence an “urgent review” of all pending applications to revoke deportation orders where the Zambrano judgement may be relevant. The Minister has even specifically referred to cases where deportation orders have already been carried out.

Mr Shatter is further quoted in The Irish Times today as follows;

“Where there is an intact and real relationship there is very little doubt the child is entitled to both parents living with them in the State”.

It thus appears now that the Department face the task of assessing hundreds of cases whereby non EEA parents of Irish citizens have been wrongfully refused the right to live and work in the State.  From the comments of Mr Shatter, it seems that many of these decisions may be quashed by the Department of Justice and permission granted without the need for High Court litigation. This is a very positive and essential step the Minister has taken in order to avoid a flood of High Court Judicial Reviews in respect of each individual case.

In light of this statement, Brophy Solicitors would strongly recommend that all non EEA parents of Irish children who are currently residing in the State without lawful permission, or who have a restricted residency permission, or who have been refused visa to enter the State, or already been deported,  immediately submit an application to the Department of Justice for consideration on the basis of the Zambrano judgement. Please contact us if you have any questions in this regard. 

Karen Berkeley, Brophy Solicitors 

22.03.11

Aftermath of Zambrano

ACTIVITY SURROUNDING ZAMBRANO

The potential impact of the Zambrano decision is already making its mark in the office – we have been inundated with calls from clients, members of the public and press.  Brophy Solicitors has certainly welcomed the decision in terms of the benefits and rights arising from a person’s status as a member of the Union and we are aware that the impact of Zambrano is not to be underestimated.  The decision goes beyond the current Free Movement Directive and Regulations in dealing specifically with what it means to be a citizen of the Union.  

We have already released a statement to the press in respect of one of our cases concerning the deportation of the father of an Irish citizen child. (See article by Jamie Smyth, Irish Times, 10^th March 2011) The father voluntarily left the State following a deportation order having been issued against him, and judicial review proceedings are in place to challenge the deportation order.  We are now working on the application to revoke the deportation order on the basis of the Zambrano judgment. 

Apart from this very obvious instance of how Zambrano may be applied ,we have to deal with a host of potential situations in which the case may have an impact (or may not). In fact, the case has raised many more questions than answers. For example, to which family members of an Irish citizen will the judgement apply? Can partners and spouses of Irish citizens benefit from the judgment? What about the non-marital family and parents who do not have a direct involvement with their children’s upbringing? How will the decision impact guardians?  What exactly does ‘dependency’ entail? Are all children not dependant on their parents? Do the rights of the EU citizen child extend beyond reaching the age of majority? How will social welfare policy be affected and the requirement of habitual residency? Will parents of Irish Citizen children currently resident on Stamp 3 conditions now have their status amended so that they can reside and work in the State? 

It seems to us that many of these questions can only be confirmed by the courts, and potentially the questions will be referred by the High Court back to the European Court of Justice during the determination of particular cases. 

We welcome the statement released by the Immigrant Council of Ireland saying that Ireland’s practice of refusing to give some parents of Irish children permission to live and work in this country must now end and that those parents who had already been deported must be allowed to return. 

We are now working toward submitting applications to revoke deportation orders as well as making change of status applications for family members of Irish Citizens on restricted residency permits. We are also updating applications for visas for family members of Irish citizens. In fact, we are reviewing all current cases to which we think Zambrano may apply and we are also in dialogue with interest groups and NGO’s in an attempt to pool all knowledge and information. We welcome your comments and questions.

Sarah McCoy, Brophy Solicitors

11.03.11

Significant Development in Irish Immigration Law - Decision in Zambrano

MAJOR DEVELOPMENT IN THE APPLICATION OF EU TREATY RIGHTS LAW –ZAMBRANO V OFFICE NATIONAL DE L’EMPLOI

The European Court of Justice has just delivered a judgement - Case C-34/0 Ruiz Zambrano v Office National De L'Emploi - which will have major implications in respect of the right to reside for non EEA family members of Union Citizens within the territory of their own national State. Until now, Union Citizens could only exercise their EU Treaty Rights on moving from one to another Member State, hence the body of law which developed became known as “Free Movement Law”.

Mr Ruiz Zambrano and his wife, both Colombian nationals, applied for asylum in Belgium due to the civil war in Colombia. The Belgian authorities refused to grant them refugee status and ordered them to leave Belgium. The couple continued to reside in Belgium while awaiting applications to regularise their status. Mr Ruiz Zambrano's wife gave birth to two children who acquired Belgian nationality. At the time of birth of the children, Mr Zambrano was financially self-sufficient. He later became unemployed and was refused unemployment benefits because the Belgian authorities found that he did not comply with the foreigners' residence requirements under national legislation. Mr and Mrs Ruiz Zambrano were also refused residency application in their capacity as ascendants of Belgian nationals.

Proceedings were issued on behalf of Mr and Mrs Zambrano, and a reference was made to the European Court of Justice seeking clarification on whether the Zambranos could rely on rely on European Union law to reside and work in Belgium on the basis of their parentage to Union citizen children who have never exercised their rights to free movement.

The ECJ confirmed that as Union citizens, the Zambrano children enjoyed the fundamental status of nationals of the Member States. The ECJ confirmed that European Union law precludes national measures, which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The ECJ held that if the Belgium authorities refused a right of residence and work to Mr and Mrs Zambrano, this would in effect deprive their dependant Union citizen children of their fundament rights to reside within the European Union, as they would be obliged to leave Belgium with their parents.

In summary, the ECJ held that as follows;

“Citizenship of the Union requires a Member State to allow third country nationals who are parents of a child, who is a national of that Member State, to reside and work there, where a refusal to do so would deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. This requirement applies even when the child has never exercised his right to free movement within the territory of the Member State.”

The implications of this judgement are potentially very wide ranging. The ECJ’s reasoning can be applied to all domestic law cases whereby Union citizens are seeking residence permission for their family members or dependants within their own national State. Thus, Irish citizens may now seek to rely on a huge body of European legislation and caselaw in respect of the right to be joined and reside with family members, such law having previously been deemed to be extraneous to their case. Many deportation orders against parents of Irish citizen children may have to be reconsidered, including deportations which have already been effected. Similarly, visa applications in respect of family members of Irish citizens may no longer be regarded to be at the absolute discretion of the Minister for Justice. Previously refused visa applications may require review. 

The next year will certainly be an interesting one in the field of Irish Immigration Law! We look forward to hearing your thoughts and questions on this important development.

Karen Berkeley, Brophy Solicitors

10.03.11

Work permits for Romanian and Bulgarian Nationals

ROMANIAN AND BULGARIAN NATIONALS

EEA nationals become lawfully resident in other Member State if they exercise their EU Treaty Rights in one of the following ways - work/self employed/study/self sufficient. This is set out in Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). Romanian and Bulgarian nationals are an exception to this general rule because the Irish government opted to place special restrictions on the right to work for Bulgarian/Romanian nationals. Since 1 January 2007 nationals of Romania and Bulgaria, although EU nationals, may be required to have an employment permit for a continuous period of 12 months to work in Ireland.  All Romanian and Bulgarian nationals, other than those who have been resident in the State on a employment permit, expiring on or after 31 December 2006, for a continuous period of 12 months, are required to have employment permits. Applications for work permits for them will be given preference over those for non-EEA nationals. However, the restrictions are specific to employment permits.  Therefore, it seems to be that if the Romanian or Bulgarian national becomes self employed, they avoid the employment permit restrictions and acquire lawful residency on the basis of Directive 2004/38.

This point is currently being challenged in the High Court, in a case taken by Mr Solavastru and family. See Irish Times Article dated 3rd March 2011.

Karen Berkeley, Brophy Solicitors

10.03.11

Caselaw Update: M.S.S. v Belgium and Greece (February 2011)

CASELAW UPDATE

The Europstat asylum statistics release coincides with a very significant decision of the European Court of Human Rights of the 21^st January 2011 which could now have an embarrassing impact on Ireland, in light of our very low recognition rates for asylum applications. The case, M.S.S. v Belgium and Greece, concerned an Afghan asylum seeker who entered the EU through Greece en route to Belgium where be claimed asylum from persecution in Afghanistan. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights. The Court of Human Rights also went further and found that the widespread and well documented deficiencies in the Greek asylum procedure resulted in asylum seekers being denied a fair hearing of their case, which was in breach of Article 13 of the Convention, i.e the right to an “effective remedy”. The Court held that if the Belgium authorities carried out the transfer to Greece, they too would be acting in violation of the applicant’s rights to an effective remedy under Article 13. One of the points canvassed on behalf of the Applicant was that the asylum acceptance rated at first instance in Greece was only 0.1%.

It is hard to believe that the asylum acceptance rate at the Office of the Applications Commissioner in Ireland is now less than Greece, which has now risen to 2.8%. Is it possible that a “Dublin 2” transfer of an asylum seeker from another Member State to Ireland could also be held to be contrary to the Convention on the basis that the low acceptance rates in Ireland? Certainly the fact that our acceptance rates at first instance are lower than Greece’s causes doubts as to whether an asylum seeker would receive a fair hearing in Ireland. Such a finding against Ireland would have been inconceivable until recently, but it may now be a possibility in light of the M.S.S. v Belgium and Greece.  We will watch with great interest as to how matters progress and will keep the updates coming as always.

03.02.11

Refugee Recognition Rates in Ireland (February 2011)

ASYLUM RATES OF ACCEPTANCE SHOCKINGLY LOW

You might have read the Irish Times article of the 21^st January last which revealed that Eurostat has confirmed that the Irish Government has refused 99% of all asylum applicants in this State at first instance in the third quarter of 2010. Which means that from 375 applications, the Office of the Refugee Applications Commissioner rejected 370.  Just five applications were successful. Compare this to our European neighbours’ positive decision rate – Netherlands is at 46%, Denmark is at 41%, Italy is at 36% and the UK and Germany come in at 24%. Against these rates for positive decisions of other countries, Ireland’s 1 % acceptance rate is all the more shocking.

03.02.11

Meeting of the Refugee and Immigration Practitioners Network (January 2011)

In our weekly update, the immigration team shared details of the recent Refugee and Immigraton Practitioners Network meeting. A number of interesting and relevant topics were discussed. 

 REFUGEE AND IMMIGRATION PRACTITIONERS NETWORK 

The Irish Refugee Council and the Immigrant Council of Ireland together set up the Refugee and Immigration Practitioners Network in order to bring together a range of practitioners working in the areas of asylum and immigration. The RIPN holds monthly meetings which are well attended by solicitors, barristers, NGO workers, caseworkers, etc. The meetings address a wide range of topics, depending on what matters are topical at the time and what High Court judgments have been recently issued or Department policy changes implemented. The meetings are usually held in the Law Society and are a very helpful way of keeping up to date with the constant changes in the area of Immigration and asylum.

The most recent RIPN meeting, on Tuesday 25^th January 2011, addressed the following topics:

• New Student Regime

• Lesbian/Gay/Bisexual/transgender asylum claims

• The Humanitarian Leave to Remain/Subsidiary Protection applications issue - we heard that the Department of Justice is currently deciding both applications, usually by the same decision maker simultaneously and often the HLTR application first. A number of High Court challenges have been brought regarding the non independent nature and predetermination of the Subsidiary Protection in contravention of the European Community Protection Regulations of 2006.

The meeting was well attended and generated a lot of discussion and sharing of information regarding the above topics. 

The RIPN should be commended on their good work. We look forward to attending further meetings in the future and posting more updates on changes and developments in this area. 

28.01.11

Reckonable Residency - Practical Problems (January 2011)

Our immigration team recently looked at some of the problems our cases are coming up against with establishing the required period of reckonable residency. 

RECKONABLE RESIDENCY – PRACTICAL PROBLEMS 

Many of our clients have been residing in the State for over five years under Stamp 4 conditions or under work permit conditions.  For one reason or another, they may have ‘gaps’ in their reckonable residency as recorded on their passports.  This may be due to a delay at their local GNIB office.  This week we reviewed several cases whereby the client was refused an application as they were not registered as having the requisite reckonable residency despite having been granted permission to remain in Ireland for 5 years by the Minister. Confused?  

An example worth referring to is that of citizenship.  Our client ‘A’ must be resident in Ireland legally for 60 months at the date of submission of his citizenship application.  He has resided under Stamp 4 for 5 years now and decides he wants to be Irish.  But the application is refused.  ‘A’, according to the officials in the Citizenship Section, has 59 months as recorded by the GNIB and evidenced in the stamps in his passport.  It’s not a huge deal for ‘A’ as he can resubmit his application immediately to show he fits the 60 month criteria. 

However,  bigger problems are created as a result of how the State calculates one’s reckonable residency.  If I were granted permission to remain by the Minister for 5 years, I shall assume that each of those 5 years are ‘reckonable’ for the purposes of a citizenship application.   However if there are gaps in registration evident from my passport for reasons that may be beyond my control, these gaps are deducted and I am notified that I do not qualify.  This issue could arise in the context of renewal of IBC status residency cards and Long Term Residency Applications.  

We are following such matters up but in the meantime we direct our readers to the judgement of Sulaimon and The Minister for Justice, Equality and Law Reform, 20091173JR which might be of interest. We would also invite your comments on any problems you have had in this area.

21.01.11 

New Student Visa Regime (January 2011)

In early January, our immigration team reported on an increase in queries on the new student visa regime, that was one of the topics of our seminar back in November.

NEW STUDENT VISA REGIME

This week we have been receiving a large number of queries concerning the new Student Visa recommendations which are now being carried out since the beginning of January. The changes regarding the criteria for renewals of stamp 2 permission, and the particular exemptions for timed out students are causing many of our clients considerable confusion. We would like to direct you to our article “New Student Regime for Full time Non EEA Students” from December 2010. This summarises the changes in the system which are now being implemented and might assist those who are trying to figure now they are effected.

We would also like to highlight to you the recent UK case of SAB and Others [2010] UKUT 441 (IAC). The case concerned an appeal of a doctorate student of Ghanian nationality who had consistently worked in excess of the maximum hours permitted by the UK Immigration Rules. It was found that the immigration judge was correct to dismiss the applicants' immigration appeal, although it was a significant interference with his private and family life to prevent him from completing his doctorate whilst in the United Kingdom. It was confirmed that curtailing his permission to remain and preventing him from completing his doctorate in the UK was a proportionate response to a person who totally disregarded his obligations under the Immigration Rules by working for hours excessive of those permitted over a prolonged period. The reasoning for this decision is summed up by the UK Tribunal as follows:

“The restriction on working hours imposed on students are hard to police and other things being equal a person who chooses to ignore the Rules should not expect to find it easy to persuade the Tribunal that he is entitled to remain on human rights grounds until his degree is finished. Any other result would seriously undermine the requirement that students take only limited employment and it would be unfair to those students who might wish to work longer hours than are allowed.”

The new student visa recommendations as recently implemented in Ireland bring the Irish student visa system more in line with that of the UK. We would think that the next year will see a low tolerance in respect of EEA national students in the State who are breaching the terms of their student visas. Such students may quiet likely be refused the renewal of their Stamp 2 permission to remain, or may find that their permission is revoked, if they have not complied with the conditions of their visa. Taking guidance from the UK case of SAB and Others, it is unlikely that the Irish courts will have any more sympathy for such students than the UK courts.

As always we look forward to hearing about your experiences of the new student visa regime and would be happy to advise on any problems you are having. 

13.01.11

A Mixed Bag: Delays, Caselaw Update and Update on 'Sham' Marriage case

In our weekly update before the Christmas break, we looked ahead to the New Year and issues that we want to address then, including delays in decisions on family reunion and humanitarian leave to remain applications. We also had some helpful caselaw to update you on. 

MIXED BAG: DELAYS, CASELAW UPDATE AND UPDATE ON 'SHAM' MARRIAGE CASE

We are aware that the Christmas period is a difficult time for many of our clients who have been patiently awaiting decisions on their applications for leave to remain, applications for visas and change of status applications. Many of our clients are separated from their spouses or children, or are being prevented from entering the employment market and are in difficult circumstances.  We are having great difficulties with on going delays in respect of the family reunification applications, and even in respect of some visa applications.   Some applicants for humanitarian leave to remain are waiting as much as 5 or 6 years for decisions in their cases. Many of our clients have actively engaged in Irish society through voluntary work, community activities and developing computer and language skills. They may have children in the State who were born here and who have settled into school life. It is always difficult to see the predicament of such clients, who might believe that no decision is better than a potentially negative decision. It seems unfair that having invested so much in this country, these valuable members of their local communities may live in constant worry regarding their future. We promise to do our best in the New Year to bring these cases to conclusion as fast as possible.

We are pleased to note that after a number of weeks of challenging an objection raised by An Garda Siochana relating to our clients' proposed marriage, the objection has been lifted and our clients are free to marry. The objection claimed that our clients' marriage was one of 'convenience.' The assertion was unfounded and resulted in a serious breach of our clients' right to marry as well as having a serious impact on their private family life. Following a series of investigations, searches and accusations our clients were advised that there now existed no impediment to their marriage. Proceedings in this case are continuing in the High Court and we shall keep you informed as matters progress. We would ask any interested parties to look at the decision of the European Court of Human Rights in O'Donoghue and Others v. the United Kingdom (application no. 34848/07).

Finally, we would like to draw your attention to a recent UK High Court ruling which has found that the UK government’s implementation of a temporary cap limiting the number of skilled Non EU nationals travelling to the UK was unlawful. Joint Council for the Welfare of Immigrants (JCWI) succeeded in their challenged and there is a helpful note on their website regarding the decision. The temporary cap had had the effect of reducing the numbers of skilled Non EU nationals travelling to the UK by approximately 5 %. The Home Office stood over the restrictive policy, and indicated that it was firmly committed to reducing the levels of net immigration. The High Court found that the policy had not been lawfully implemented, as it had not been subjected to parliamentary scrutiny, and there must be ceased. However, clearly if the policy is properly implemented, the cap on numbers may introduced once again in the New Year. For this reason, there is concern that there will be a huge influx of application for employment permits in the UK in the coming months.

Wishing you a very happy Christmas and New Year. We look forward to hearing from you in the New Year!

22.12.10