Update on the rights of residency of dependant parents

POSITIVE DECISION ON RESIDENCY RIGHTS OF PARENTS OF ADULT IRISH CITIZENS

We were very happy to obtain a (very!) positive decision from Mr Justice Hogan in respect of a case we had taken challenging the Minster for Justice’s refusal to grant permission to reside for the dependant elderly parents of an Irish citizen. The hearing was for leave to apply for Judicial Review, and the fact that this case ran for three days reflects the complexity and novel nature of the legal submissions being made.

The argument submitted by the Minister was that the no right existed for adult Irish citizens to have their dependant parents reside with them in the State, and any infringement of family rights was reasonable, proportionate and properly within the Minister’s discretion.  A central point in the case thus became whether the circumstances of the Applicants, as Irish citizens applying for their dependant parents to reside with themin in the State, triggered the protections of Article 41 of the Constitution.

  “1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

Mr Justice Hogan clearly confirmed that the rights of Irish citizen adults to the company of their dependant parents does engage Article 41 of the Irish Constitution. He stated that the decision to care for elderly parents clearly engages the “moral nature of the family as an institution”. This is an important legal point, and one which had not been previously confirmed by the Irish Courts.

Mr Justice Hogan made some further very important findings in his judgement – he has re  defined the concept of financial dependency, which in the case of TM v Minister for Justice was held to mean "essential support". Mr Justice Hogan instead held that to financial support which is "appreciable and significant in the context of the recipients" is sufficient to amount to dependency.

We believe that the decision recognizes some important factors in family and immigration law, and will be very relevant in many cases concerning Irish citizens seeking to be joined in the State by their family members.

See article in the Irish Times, July 1^st 2011, covering the High Court’s decision.

Karen Berkeley, Brophy Solicitors

05.07.11

EU Treaty Rights Update: What happens in cases of separation or divorce?

RIGHTS TO PERMANENT RESIDENCY FOR NON EEA FAMILY MEMBERS

We have been receiving many queries relating to the rights of spouses and partners of EU citizens to permanent residency pursuant to the Free Movement Legislation. The queries  have often involved circumstances where the Union citizen is no longer in employment, or where the couple have seperated or are divorced.

Directive 2004/38 and Irish Regulations of 2006 which implement the Directive into Irish law provide rights of permanent residence in the host Member State for family members of Union citizens.

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of residence in accordance with Directive/Regulations, provided that no grounds for expulsion exist against them. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.

Thus, Union citizens and their family members who have resided in the State for a five year period, but not in conformity with the Directive/Regulations, will not be entitled to premanent residence.

The Regulations specifically deal with the situation of a Union citizen and their family members’ eligibility for permanent residence in circumstances where the Union citizen is no longer working in the State. Regulation 13 directs that Union citizens who have been in employment in a host Member State, may apply for a permanent residence certificate when their employment ceases (whether or not they have acquired five years of residency) if they are of pensionable age/retiring, if they have acquired more than 3 years residence and have pursued the activity at least within the last 12 months, or are ceasing employment because of incapacity to work.

Regarding family members, the Regulations state that the family member of a Union citizen who is entitled to permanent residency as explained above, may also remain permanently in the State on the basis they have been residing with the Union citizen.

Regulation 10 and 14 deal with the right of residence/permanent residence for family members in the event of divorce. The Regulation states that a family member of a Union Citizen may retain a right of residence in the State on an individual and personal basis in the event of the Union Citizen’s divorce, in the following circumstnaces;

(i)      Prior to initiation of divorce, the marriage lasted at least 3 years, including one in the State

(ii)     The non EEA spouse has custody of the Union citizen’s children by court order

(iii)    Particularly difficult circumstances exist such as domestic violence

(iv)    A court order for access to a minor child in the State exists

However, the family member must also satisfy the Minister that he is in employment/self employed/self sufficient.

A family member who meets these criteria is entitled to reside independently in the State after the divorce. Regulation 14 directs that such a family member shall then acquire a right to permanent residence after lawfully residing in the State for a period of five years.

A family member who has resided with the Union citizen for five years and wishes to submit an application for permanent residence must use the Form EU 3. This form is specific to those family members who are in a continuing relationship with the Union citizen.  Both the Union citizen and family member are required to sign the form and provide details of their employment status. A document certifying their right to permanent residence will be issued on a successful application. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years, and these must be issued no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.

Where the family member is no longer residing with the Union citizen, there is no specific procedure to follow for applying for permanent residence. However, as explained above, a family member may still retain the right to permanent residence, for example where divorce proceedings have been initiated as directed by Regulation 14. A request for permanent residence can be submitted to the Minsiter in writing, with sufficient documentary evidence of residence in the State.

Where there is a marital breakdown, which has not resulted in a divorce, an unusual situation occurs whereby the family member cannot rely on the protections of Regulation 14. We argue that it would be contrary to our Constitution’s recognition of the special position of the family in the State to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC. Recital 15 of the Directive provides:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.”

We submit that this principle should be purposively construed such that a third country national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. If it is not construed in this way, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence. This is, in effect, an encouragement to divorce, and is contrary to our Constitution.

We hope that this clarifies some of the more complex aspects of EU Treaty Rights applications. We welcome any questions you may have. 

Karen Berkeley, Brophy Solicitors

28.06.11

Newsflash! Important changes to citizenship applications

 ANNOUNCEMENT OF NEW PROCEDURES FOR CITIZENSHIP APPLICATIONS

The Minister for Justice, Equality and Defence, Alan Shatter, T.D., recently issued a statement setting out details of new changes to be introduced to the citizenship application procedure.

The most significant change for applicants is bound to be the reduction in the application processing time. According to the Minister there will be a “six month turnaround time” on applications for Naturalisation. The current minimum processing time is about two years. There is currently a backlog of 14,000 applications and  it is hoped that it will be cleared over the coming months. This change, if it proceeds, is to be welcomed.

While reviewing the application process the Minister found that many applications forms (Form 8) were being returned to applicants for being incorrectly completed. In order to counteract this the Minister has introduced new application forms to be used for any application for Naturalisation made after the 24^th June. Any applications on the old forms after that date will be returned in their entirety.

These new forms have some small but notable changes:

All applicants are now required to put in details of their residence stamps in order to calculate their reckonable residency. There is a problem here for people with refugee status that we are currently trying to clarify with the Irish Naturalisation and Immigration service. There is no reference to the existing requirement of only three years reckonable residency for people with refugee status. It may simply be the case that this was left out of the new draft form.  When we get more information about this we will post it here and on our website. In the meantime people with refugee status should enclose their letter confirming their acceptance of refugee status with their application. It remains our understanding that time spent as an asylum seeker does not count towards reckonable residency.

The other changes to the form and application are that you now have to give details of your employment for the last five years and details of any social welfare payments received within the last three years. We have noted that there has been an unofficial policy in the Department of Justice to refuse applicants Naturalisation for being in receipt of Social Welfare. This was also highlighted in the recent report of the Immigrant Council of Ireland. It would now appear that this policy has been formally adopted. Such a policy clearly discriminates against those who are on Social Welfare through no fault of their own i.e. disability and sickness. We are also concerned that such a general policy discriminates against applicants who satisfy the statutory criteria and have an excellent work history but have had to rely on job seekers allowance for a period. For applicants who are in receipt of unemployment assistance it is essential that you provide evidence of your attempts to obtain work and your registration with FAS. 

It is hoped that the changes to the forms and the updated list of required documentation will decrease the amount of incorrect applications being returned to applicants thereby reducing the turnaround time on applications.

Further changes to the process include the introduction of a new Citizenship ceremony to add a “sense of occasion” rather than simply receiving the Certificate of Naturalisation by post. This addresses concerns of new citizens noted in the report of the Immigrant Council of Ireland and should be welcomed. Also the Minister hopes to employ a number of interns under the Governments Jobs Imitative to assist with the applications and we hope that this will ensure that the proposed new turnaround time is met. 

We will keep you updated with any further changes or developments in coming weeks and months. As always, we welcome your comments or queries.

Brophy Solicitors 

24.06.11

Celebrating World Refugee Day & 60 years of the Refugee Convention

1951 REFUGEE CONVENTION: HAPPY 60TH BIRTHDAY! 

On Monday this week, Professor James Hathaway of the University of Michigan Law School gave an engaging and lively talk ‘Saving international refugee law’, hosted by the Irish Refugee Council and School of Law, Trinity College. The timing of the talk was particularly apt as this year marks the 60th anniversary of the UN Convention relating to the Status of Refugees.

Professor Hathaway set about challenging governments and advocates to move beyond some of the common misconceptions regarding refugee law and protection. He started with misconceptions around the place a so-called ‘real’ refugee seeks protection. The Refugee Convention, he argued, does not say that a ‘genuine’ refugee is obliged to seek asylum in the first place he lands. Decision makers on claims for refugee status often claim this when rejecting applications. Rather family and language ties should be accepted as good cause for claiming refugee status in a particular country and it should be the risks on return that must be at the core of the assessment of the claim. He asked, if we were forced to flee tomorrow, would we not try and go where we had some sort of connection? Professor Hathaway also rounded on the trend in developed countries towards criminalizing refugees who by necessity, break national immigration laws in order to access protection.

Professor Hathaway further tackled the issue of how long States are required to offer protection to refugees. He succinctly argued that there is no provision in the Refugee Convention that entitles refugees to a permanent right to reside in their country of asylum. In fact, Professor Hathaway said that to suggest refugees should have a permanent right to reside under the Refugee Convention is to confuse the issues: rights of residence are conferred under a State’s immigration system. The Refugee Convention requires protection or residence for the duration of risk, he argued.

What Professor Hathaway highlighted which was of particular interest in light of the recent Zambrano decision, are the sometimes overlapping rights that refugees may avail of: a refugee may enjoy the protection of the Refugee Convention, but may also accrue family rights that are protected by domestic provisions such as our Constitution and other law including the European Convention on Human Rights and EU Treaty Rights provisions. It may be under these other provisions that the refugee enjoys rights to permanent or long-term residence but this right does not stem from the Refugee Convention itself.

Professor Hathaway repeatedly critiqued the rhetoric of governments in the developed world, who argue for greater responsibility sharing with developing countries which host approximately 80% of the worlds’ refugees. He observed that this appears only to be rhetoric at present and there is no practical framework or mechanism that formalises such responsibility sharing at present.

Finally, in response to a question from Áine Ní Chonaill of Immigration Control Platform who advocated that Ireland should withdraw from the Refugee Convention, Professor Hathaway stated that remaining a signatory to the Refugee Convention is an ethical, moral decision on behalf of the State but more importantly it is a pragmatic choice. The Refugee Convention offers a framework and a controlling mechanism for processing requests for protection that do not fit within existing immigration systems.

In closing, Professor Hathaway reiterated that he believes the Refugee Convention is a brilliant document that provides protection to some 12 million individuals across the world, more than any other human rights treaty or law. Good reason to celebrate. Happy 60^th birthday!

Brophy Solicitors

16.06.11

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