ARTICLE 8 AND THE RIGHT TO COMPANY OF FINANCIALLY DEPENDANT NON EU NATIONAL PARENT

UK Court of Appeal Judgement, AAO and The Entry Clearance Officer, 22^nd July 2011

An interesting judgement was delivered by the Court of Appeal (England and Wales) last week in the case of AAO and The Entry Clearance Officer. The Court assessed the relationship of adult British citizen and their financially dependant non EU parent under Article 8 of the European Convention of Human Rights. We are very interested in the Court’s findings as we are working on number of similarly factual cases for our clients.

The case involved an application by 69 year old Somalia national who had been living in Kenya to enter the UK to join her British national daughter. The Applicant was financially dependant on her daughter, who sent her monthly payments of approximately $100. She was also in poor health, and dependant on neighbours for daily care. The British national daughter had seven children and was herself dependant on State welfare.  The Clearance Officer refused her application for indefinite leave to join her daughter as a relative and financial dependant. The Asylum and Immigration Tribunal upheld this decision, and the Applicant appealed on the basis that this was a breach of her Article 8 rights. The argument was made on her behalf that financial dependency could constitute family life within the meaning of Article 8.

The Court of Appeal (England and Wales) found that family life within the meaning of Article 8 would not normally exist between parents and adult children in the absence of further elements of dependency which go beyond normal emotional ties. Lord Justice Rix states as follows;

“although the money sent to her mother by the daughter raises an element of dependency, it is not one which in my judgment takes the matter very far. The provision of such money can be as much an insulation against family life as evidence of it. In any event, there is nothing to prevent the daughter continuing with the provision of money to her mother in Kenya: therefore to this extent there is no interference with family life”

We believe that financial dependency alone may not meet the Article 8 threshold, but it is a very relevant and indicative factor in the assessment of family life. The financial factor is often coupled with many other factors which would bring a case within this threshold, for example emotional dependency, frequency of contact evidencing a close relationship, obstacles prevent family life to be maintained outside the State.  We have a similar case coming up for hearing before the High Court next October, which we believe includes all these factors, and which we believe falls within the ambit of Article 8 and Article 41 of the Irish Constitution. We will keep you updates as to the outcome of this case.

IMMIGRATION: RIGHTS OF INDIVIDUALS V OBLIGATION OF STATE AUTHORITIES

UK BORDER AGENCY OVERHALL OF IMMIGRATION SYSTEM

In making submissions to the Minster for Justice on behalf of our clients in respect of visa and residency applications, we frequently must address the delicate balance between the rights of our individual clients against the legitimate obligations of the State. A common example would be the rights of our clients to family unity verses the State’s right and obligation to act against abuse of the Immigration laws and to generally protect the public finances. It is of course the role of the State authorities to protect against abuse of law both in the civil and criminal sphere, and in immigration terms, this  would mean to prohibit fraudulent marriages of convenience, or abuses of the State’s welfare system. The correct balance to be reached can be difficult and unclear. Problematically in Ireland, the law is often very unclear as we have very little relevant statutory instruments, or departmental guidance to rely on. Thus, determinations often result in High Court litigation in order to decipher where exactly the correct balance lies in respect of individual cases. This is a huge financial burden on the State.

Often, our government looks to the UK position for guidance. We note that the UK Border Agency is currently a "major overhall of the Immigration system". It was announced on the 13th July last that the Agency is commencing a consultation process with the aims of  “stopping abuse, promoting integration and reducing burdens on the taxpayer.”

Some of the proposals of this consultation group are as follows;

• defining more clearly what constitutes a genuine and continuing marriage, to help identify sham and forced marriages;
• introducing a new minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported as a basis for integration
• extending the probationary period before partners can apply for settlement in the UK from 2 years to 5 years,
• exploring the case for making 'sham' a lawful impediment to marriage in England and Wales, and for giving the authorities the power to delay a marriage where sham is suspected;
• working closely with local authorities to ensure that vulnerable people are not forced into marriage; and
• reviewing the full right of appeal for family visitor visas, and inviting views on whether there are circumstances (beyond race discrimination and human rights grounds) in which an appeal right should be retained.

We wonder will our own government be following in a similar vein in respect of some of these proposals in the long pending Immigration and Residence Bill?

Further information on these proposals can be found at the UK Border Agency website.

Brophy Solicitors 

ZAMBRANO UPDATE

ZAMBRANO HIGH COURT LIST

The cases in the High Court “Zambrano List” were listed yesterday before Mr Justice Cooke. Counsel for the State indicated that letters had been sent by the Minister to each applicant requesting further information/documents to be submitted in order to fully assess applicants for residency pursuant to the Zambrano case. Mr. Justice Cooke was satisfied with this progression, and the cases were therefore re listed for the 10^th October 2011 in the new term.

Our concerns relate to the applicants who have already left or been deported from the State, as they remain separated from their families pending the Minister’s determinations. The difficulties for these parents is that Zambrano assessments are based on the parents involvement in the Irish child’s daily life, which is very difficult to prove when a parent is resident out side the State. These cases are therefore somewhat more complicated. It seems that the applicants who have remained residing with their families in the State and have clear criminal records are now receiving determinations. However, it seems unlikely that determinations on cases where the applicant is outside the State will be reached as soon. We do not think it fair that the applicants who have been unfairly removed from the State should continue to be prejudiced in this way. This is particularly  so given that the the Minister has been on notice of Zambrano since March 2011, and made a public announcement that all applications would be dealt with expeditously. We will continue to request immediate determinations for all our clients. 

Brophy Solicitors

26.7.11

ZAMBRANO/CHEN

HIGH COURT REFUSAL TO FIND A RIGHT TO TEMPORARY PERMISSION TO RESIDE FOR ZAMBRANO/CHEN APPLICANT

It might be of interest to know that this morning we made an application to the High Court for a temporary permission to reside/work pending determination of an Chen / Zambrano application for a third country national father of a Union citizen child, the family unit being permanently resident in Ireland. We argued that such applicants should be treated analogously to applicants for a residence card under Directive 2004/38 on the basis that all rights were deriving from the Treaty, and not the secondary legislation itself. We argued that just as an applicant pursuant to the Directive/Regulations is protected with temporary permission to reside and work, so too should our client be protected in this way. Particularly given that the family was fully dependant on his weekly earnings.

The judge refused our application, and would not entertain the argument that the application was analogous to those made under the Directive. He found that the court should not intervene when an application was before the Minister as this would effectively preempt the Minister’s decision.

It is also of interest to note that the Judge indicated that Zambrano may not be relevant to the case as the child was not a citizen of this State, and did not risk being removed from the territory of the European Union.  To us, this seems to create a clear discrimination between Irish children and other Union citizen children. The former are now distinctly advantaged as their non EU parents can obtain the right to reside and work within Ireland following Zambrano, while the parents of children of a European Union nationality other than Ireland would be forced to leave Ireland and assert these rights in the country of the child’s nationality. This would seem contrary to the fundamental concept of free movement within the EU.

It seems likely that these questions will have to be referred to the European Court of Justice for clarification in the coming months. 

Brophy Solicitors

25.7.11

Short Stay Visa Waiver Programme - Who Is Covered?

NEW SHORT STAY VISA WAIVER PROGRAMME

Ireland’s first ever short-stay visa waiver programme was announced on 30th June. It relaxes restrictions on who must apply for short stay visas in a bid to attract tourists visiting the UK to extend their trip to come to Ireland. The current programme is a pilot that will run until October 2012, taking in the Olympics in London in 2012.

In response to some queries we have had in on how the programme applies, here is a brief summary. 

Firstly, note that the waiver only applies to a specific list of nationalities, many of which are currently ‘visa’ countries. The sixteen countries included are: India, Kazakhstan, Peoples Republic of China, Uzbekistan, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates, Belarus, Montenegro, Russian Federation, Serbia, Turkey and Ukraine.

Secondly, potential applicants should note that the waiver only applies when the applicant already has lawful permission to enter the UK as a tourist or business person. They will be permitted to enter the State for 3 months or until their UK visa runs out, whichever is the shorter.  

It is also worth noting that the initiative allows long-term residents of the UK who are nationals of the listed countries to have the cost of an Irish visa waived.

We welcome this pragmatic initiative. Further details of the new initiative are available here 


Brophy Solicitors 
25.07.11

SHAM MARRIAGES

WRONGFUL ARREST OVER SUSPECTED 'SHAM MARRIAGE'

The BBC reported that Northern Ireland police admit that sometimes, they get things wrong following the arrest of Ms. Yanan Sun who was just about to marry her Northern Irish fiancée in Derry.  Ms. Yanan Sun who is pregnant is understandably distraught.  Her fiancée has commented that an apology is not enough. 

This year we issued proceedings in a similar case and have first hand experience of the human side of these police blunders which cause great stress, embarrassment and anger for a couple about to wed.  A wrongful arrest for any person is a frightening and humiliating occurrence, let alone an arrest on a day that is supposed to be one of the happiest days of that person's life.  It is not acceptable for State authorities to act in this manner. 

Brophy Solicitors 
22.07.11

EU TREATY RIGHTS AND SHAM MARRAIGES

 MINISTER SHATTER'S RECENT STATEMENT ON SHAM MARRAIGES

The INIS press release of the 9^th June 2011, entitled “Sham marriages leading to abuse of free movement rights ”  summarizes Minister Shatter’s recent speech to the Justice and Home Affairs Council in Luxemburg.  The Minister informed the Council of the “highly irregular” patterns of marriage. He indicated that his official were working on drafting amendments to the Immigration and Residence Bill to deal with the problem of “marriage of convenience”, and that this Bill would be re introduced shortly.

We very much welcome the fact that that the Minister proposes to take action against the fraudulent industry surrounding the EU Treaty Rights process.  We would agree with his position that the problem is significant and requires intervention by the State in the form of appropriate legislation. The current position is completely unsatisfactory in that it is not currently an offence to enter a fraudulent marriage for immigration purposes. This leaves the field wide open for abuse of the process, and frankly it is of no surprise that a fraudulent industry has flourished.

Since the case of Izmailovich v the Commissioner of an Garda Siochana, delivered on the 31^st January 2011, the Government is fully on notice of this legal lacuna of the “marriage of convenience”. Mr Justice Hogan, who presided over the Izmailovich case, indicated in his judgement that he had no option but to find that the Gardai are not empowered to prevent the solemnisation of marriage on the grounds that they suspect, even with good reason, that the marriage is one of convenience because under current law the marriage would be valid. He summed up the position succinctly, and went so far as to call on the legislature to resolve the situation;

“I quiet appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory then it is of course in principle open to the Oireachtas and if needs be the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult once and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and again if needs be the Union legislature can resolve”

We too call on the Minister to take action in this area, as it is to the great disservice and frustration of all genuine applicants in the EU Treaty Rights process that the fraud is permitted to continue.

ZAMBRANO UPDATE

 POSITIVE DECISIONS IN ZAMBRANO APPLICATIONS 

We are happy to update you that the Minister is now granting permission to reside to the “Zambrano” cases which are currently before the High Court. These are the cases which involve challenges to the deportation orders issued against parents of Irish citizen children. Following the European Court of Justice decision in the case of Zambrano v. Office national de l’emploi, Case C-34/09, 8^th March, 2011, all these cases were transferred into a separate list in the High Court, which has been called  “The Zambrano List”. When these cases were last listed in court, the Minister undertook to contact each of the Applicants prior to the 25^th July 2011 to confirm the Minister’s position on their respective cases.  Recently, we have received a number of correspondences indicating that the Minister is now revoking the deportation orders against these applicants, on “exceptional grounds”, and granting a three year period permission to reside. This permission to reside is subject to the condition that the applicant obey the laws of the State, do not become involved in criminal activity, make every effort to gain employment, not become a financial burden on the State and play an active role in the Irish child’s life. We very much welcome these positive decisions.

Karen Berkeley, Brophy Solicitors

20.07.11

Proposed changes to Business Permission criteria

CHANGES TO BUSINESS PERMISSION CRITERIA

Brophy Solicitors has received a number of enquiries regarding the Department of Justice's proposed policy changes in respect of the eligibility criteria for Business Permission in the State. While the details of these proposed changes has not yet been confirmed, we understand that the purpose is to lessen the current restrictive requirements that businesses setting up in this State must meet. We welcome the proposed changes as the current criteria have proven to act as a bar to many genuine businesses locating to this State, particularly the non negotiable requirement of an initial investment of €300,000. In the current climate, it would seem only reasonable to encourage further business and employment to the State, rather than prohibit it. However, as far we are aware, there has been no move towards implementing these changes in recent months. We have contacted the Business Permission Section of the Department of Justice to request for further information on the proposed changes, and  we have been informed in response the current policy remains as detailed on the INIS website.

We will keep you updated as to any further changes in respect of this matter.

Karen Berkeley, Brophy Solicitors

19.07.11

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