ZAMBRANO UPDATE

 APPLICANTS FROM OUTSIDE THE STATE

We have made a number of applications for fathers of Irish citizen children residing outside the State to join their Irish citizen children in Ireland.  The procedure necessarily involves an application to the appropriate Irish Embassy for a long-stay visa to enter the State.  The delays on such applications have already been considerable and yesterday we received  notification from an Irish Embassy confirming that because we had raised ‘Zambrano type submissions,’ in our application for a long-stay visa for the father of an Irish child, the matter would be sent for ‘further investigation’ to the offices of the Department of Justice and Equality in Dublin.   The note concluded that as there have been large numbers of applications submitted in light of the Zambrano judgement it may be some time before there is a decision on these cases.

It therefore appears that Visa Offices outside the State are taking roughly two to three months to review applications before sending the same application for further investigation to Dublin.  We have been told by the Visa Office in INIS that they will take a further 2 months to conclude their investigations, but in reality are taking longer again. Surely this delay is unjustified!

We might remind the Minister about his Statement he released on the 27^th April 2011.  We include the link<http://www.inis.gov.ie/en/INIS/Pages/PB11000004> to this Statement but you will find that it has expired as the statement has been removed from the INIS website.  Luckily we saved a copy of the Statement on our files.   Parents of Irish citizen children ‘outside the State’ were listed as one of the definitive eligible categories of applicants designated by the Minister following the Zambrano decision.  The Minister was very clear in his note below that applicants outside the State should apply to a local Embassy/Consulate and provide documentation showing a ‘clear link to the Zambrano judgement.’  It appears that problems have arisen within the Department concerning this category of applicants and further information has not been provided to date.

It is interesting that Department subsequently (some time around the 12^th July 2011) released revised guidelines in respect of eligibility for “Zambrano Applications”. See the following question and answer currently posted on the INIS website (http://www.inis.gov.ie/en/INIS/Pages/WP11000038);

Question 3

“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

This statement appears to be in direct contradiction to the Minster’s earlier statements in April 2011. We regard the position to be somewhat different to the Minister’s current very restrictive interpretation of the Zambrano judgement. We submit that the rights upon which a parent of an Irish citizen can rely arises from the Treaty of the Functioning of the European Union, including in particular Article 18, Article 20 and Article 21. We would highlight that while the ECJ cases such as Zambrano and Zhu and Chen are certainly very relevant to the Applicant’s situation, the judgements are not in themselves the primary source of law upon which the Applicant relies - which is the Treaty of the Functioning of the European Union.  We submit therefore that the Minister’s apparent exclusion of the parents of Irish citizen’s not resident in the State is not in accordance with EU Law.

We continue to submit applications for visa/residency for parents outside the State who wish to join or re-join their Irish citizen children residing in the State.  It is unfortunate that many of these applicants were deported shortly before the Zambrano decision came through.  They have now spent several months apart from their families with the prospect of now having to wait for a further considerable period until their applications have been decided.  We call upon the Minister to immediately review his position in light of his earlier comments.

Brophy Solicitors

24.08.11

CRISIS IN EAST AFRICA

Last week we met with a young Somali client who told us that six members of her family, including her mother and five young siblings, have recently arrived in Dadaab refugee camp in northern Kenya. Our client explained the dire situation of insecurity, violence and malnourishment her family had fled from in Somalia and the ongoing challenge to survive even in the relative safety of the camp. She had not heard from her family for over three years until she located them in Dadaab.

This disturbing story has brought home the widespread suffering arising from the crisis in East Africa. We have all seen arresting images over recent days and the famine appeal donations are fortunately well under way.

What is often not considered despite the striking images of vast refugee camps is the so-called ‘refugee burden’. The reality is that the refugee population in the developing world is far greater than that in the developed world. It is countries like Kenya that are hosting huge numbers of desperate refugees relative to the small numbers that come to countries like Ireland (in 2010, we were hosting a total of around 9,000 refugees while Kenya was hosting over 400,000). There are often worrying misperceptions about the numbers of refugees arriving in Ireland and other European countries. In June 2011, UNHCR estimated that four fifths of the world’s refugees are being hosted by developing countries, such as Kenya and Pakistan.

For our own client, she has now been residing in Ireland for over three years, waiting for a decision on her case. As a young lone female Somali, we would argue that there is currently no prospect of her returning safely to her country, particularly in light of the recent decision of the ECJ in Sufi & Elmi v UK. Unfortunately, it is likely our client will wait several more years for a decision from the Department of Justice and this may be a negative decision. In the meantime, she must try to support and stay in contact with her family and hope for a more secure future for them all. While this client has been waiting three years, at lease one of our Somali clients has been waiting since mid 2005 for a determination of her application for family reunification. We would call on the Minister to prioritise Somali cases given the desperate humanitarian situation and the dire impact of these delays on applicants and their families.  

Brophy Solicitors

18.08.11

IMPACT OF ZAMBRANO: RESOLUTION FOR MR & MRS HURLEY

We noted with interest the positive development in the long running case Gerard and Caroline Hurley that has now finally been resolved. The grant of permission to Mrs Hurley to work and reside was reported by the Irish Times over the weekend. The Irish Times also reported on the plight of Mrs Hurley back in December. 

Caroline Hurley applied to remain in the State on the basis of her Irish citizen child and her marriage to Gerard Hurley, an Irish citizen. The Department of Justice were pursuing the deportation of Mrs Hurley but it appears they had to review their decision following the landmark decision of the European Court of Justice in Zambrano.

We are working on several similar cases and despite some delays in the Department actually processing the so-called Zambrano applications, applicants are finally meeting some resolution and being granted permission to remain. While we obviously welcome the decision of Zambrano and its timely application, we remain surprised that the Department were so intent and often were able to deport individuals such as Ms Hurley, despite their Irish citizen children and Irish spouses and the protections of family life under the Irish Constitution, the European Convention on Human Rights, and the Charter of Fundamental Rights.

We would be interested to hear of any concerns or problems arising from the Zambrano decision and will of course be keeping you update to date on any new developments or successes we have in this area.

Brophy Solicitors
15.08.11

RESIDENCE RIGHTS FOR DEPENDANT PARENTS OF ADULT CITIZENS OFTHE STATE

There has been some media attention in Australia regarding the compelling story of Mrs Jefferson, the 96-year-old  British citizen, who was refused permission to reside in Australian on the basis of dependency on her Australian citizen family members. A  Deportation Order is thus threatened against her. Mrs Jefferson’s age, medical circumstances and her strong family connections to Australia, including Australian great grandchildren, made for a very strong case for residence on the basis of dependency. Furthermore, the family are fully financially self sufficient and posed no risks of financial burden on the Australian State. Despite these many factors in her favour, last week the Australian Immigration Department refused her pending Contributory Parent Visa. This type of visa allows parents to join their children in Australia provided they can support themselves. The decision has caused much controversy in the Australian media, and the Immigration Minister, Mr Chris Bowan, has made public statements to indicated that his Department would work towards finding an avenue which might allow Mrs Jefferson to stay with her family in Australia. 

It would seem to any reasonable person that the facts of Mrs Jefferson’s case are so compelling that permission to reside should have been automatic. However, this has not been the case in respect of the Australian Immigration rules, which are notoriously restrictive. By way of comparison, the UK Immigration Rules explicitly provide for “indefinite leave to enter and remain” for persons in Mrs Jefferson’s situation, i.e. those who are over the age of 65, are wholly or mainly dependant on the British citizen, financially self sufficient and without close relatives in home country for support. 

By way of further comparison, the Irish State’s current position in respect of the right to reside for dependant parents of Irish citizens is restrictive in the extreme – there is no visa or residence permission in existence for dependant parents of Irish citizens because the State argues that such right does not exist. This point is the subject of High Court proceedings taken by Brophy Solicitors on behalf of a South African elderly married couple, dependant on their Irish citizen daughter and family. The family are in a good financial position, and as in Mrs Jefferson’s case, there is no risk of our clients becoming a burden on the State. We strongly believe that the Department of Justice’s continued refusal to grant this couple a right to reside is out of line with International Immigration  law and policies, and in disregard of the special protections afforded by the Irish Constitution to the family unit.  The substantive High Court hearing of this case is scheduled for October next. 

15.8.11

Brophy Solicitors

REGISTRATION OF NAME ON BIRTH CERTIFICATE

PRACTICE NOTE ON REGISTRATION OF FATHER’S NAME ON BIRTH CERTIFICATE

We receive many queries regarding the registration of a father's name on the birth certificate of an Irish citizen child where the couple is not married. We can summarise the procedure as follows:

If the mother of the child is married to someone else other than the father of the child, her husband must complete a statutory declaration to state that he is not the father on form CRA 7 available from the Registry Office.

Alternatively, the mother must complete a statutory declaration stating that she is divorced, judicially separated or living apart under a decree of nullity for more than 10 months prior to the birth of the child.  She must accompany form CRA 8 with a court order i.e. a Decree of Divorce.

If neither of these options suit, an order from the court may be submitted by the mother or the father naming him as father of the child, in respect of an application for Guardianship/Maintenance or other application under the Social Welfare Act. Form CRA 5 is used by the mother of the child and Form CRA 6 must be used by the father. 

Some of our clients have been advised to apply to court for guardianship prior to registration of the father’s name on the child’s birth certificate in cases where the mother remains married to someone else, but has no contact with her husband. If she was in touch with her husband and he was willing to assist, we were advised that she could arrange to have form CRA 7 sworn by her husband, attend the Registry Office with the father of the child who must produce his passport and registration would proceed.

Where the parents of the child are not married to each other and wish to include the father's details where these were not included before, the couple should make enquiries directly with a Registrar of Births, Deaths & Marriages. The Registrar will advise you as to what documents and information will be required. We contacted the Dublin Registry Office and in cases where the mother is not already married it appears that both need to produce passports and attend for a meeting with the Registrar. 

Difficulties will obviously arise if the father is unable to produce his passport for registration.  We have advised some of our clients that the best way forward in these cases is to apply for guardianship before the courts prior to registration.  We have sought the return of passports that have been held for several years with the Garda National Immigration Bureau in cases where the client is the father of an Irish citizen child. 

You can contact the General Register Office for more information.

http://www.groireland.ie/

     Brophy Solicitors
     12.08.11

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

11.08.11

NATURALIZATION

CLARIFICATION FROM CITIZENSHIP SECTION ON QUERIES RELATING TO NEW NATURALIZATION APPLICATION PROCESS

Since the introduction of the new application forms for Naturalisation Brophy Solicitors has received a number of enquiries from concerned clients which we submitted for clarification to the Citizenship Section of the Department of justice and Law Reform .

Firstly we sought confirmation from the Minister that the old policy of waiving two of the five years reckonable residency requirement, in relation to applications from refugees, was still applicable as there is no mention of it on the new Form 8. The Department confirmed that the position remains the same: the Minister, in his absolute discretion, will waive two of the five years required.

Secondly we sought clarification in relation to applications made by refugees on whether time spent in the asylum process was reckonable. The Minister confirmed that for applicants with refugee status the Minister, in his absolute discretion, will allow credit for time spent in the asylum process when calculating reckonable residency.

Thirdly we asked the Minister for clarification regarding the use of Form 9. This form is to be used only on behalf of a Naturalised Irish citizen on behalf of their children. It cannot be used by Irish citizen by birth to apply of behalf of their non-Irish child.

We have also been informed by the Citizenship Section that it is the aim to have all applications submitted by September 2012 determined within a six month period.

Brophy Solicitors

11.8.11

The Equality Authority Report on 2010

The Equality Authority of Ireland launched its 2010 Annual Report yesterday (9th August) in Dublin.

Speaking at the launch, Ms Angela Kerins, the Chairperson of the Equality Authority, highlighted the importance of continuing to promote equality, by maximising the resources available as a key element of Ireland's economic recovery, "Foreign direct investment will play an important role in Ireland's growth and the country must be able to offer a place where overseas companies who are willing to invest in Ireland are comfortable placing their staff. Multinationals need to perceive Irish society as pro-equality and pro-diversity".

At Brophy Solicitors we welcome Ms. Kerins's comments on the need to promote a friendly, welcoming environment for foreign investment in these difficult times.

We also agree with Ms. Kerins that there is a need for further development in equality legislation in Ireland in recognising the rights of the child and the diversity of families. Ms. Kerins stated that ‘equal marriage remains a goal for the Equality Authority.’ In all cases, the best interests of the child should remain central. Perhaps the planned referendum on the rights of the child will afford the government the opportunity to ensure equality for every child and family in the State.

Sarah McCoy

Brophy Solicitors

10.08.11

CITIZENSHIP UPDATE

Amendments to the Irish Naturalisation and Citizenship Acts 1956 to 2004 provided for in the Civil Law (Miscellaneous Provisions) Act, 2011

Part 10 Section 33 of the Act provides for the following amendments:

• That civil partners will receive the same treatment as married couples in the context of citizenship matters. This means that civil partners of Irish citizens will now only need three years reckonable residency to apply for Naturalisation.  Applicants will have to provide documentary evidence of the partnership and will still have to comply with the other requirements for Naturalisation i.e. be of good character, self-sufficient etc. Brophy Solicitors welcomes this legislation, which brings equality in the processing of Naturalisation applications between spouses and partners of an Irish citizen.

• That the citizenship ceremonies take place in a manner prescribed by the Minister. Until recently a person granted citizenship took an oath before a District Court Judge and the new citizen subsequently received their Certificate of Naturalisation by post. Howover a  pilot ceremony took place in Dublin Castle on 24^th June where Justice Bryan McMahon, retired judge of the High Court, assumed the role of presiding officer. At this ceremony new citizens recited a declaration of fidelity to the nation and loyalty to the State. It is hoped that similar ceremonies will be run throughout the country in future. 

• That the Minister will prescribe the fees for applications for Naturalisation. The current fee is €950. 

Brophy Solicitors
09.08.11

EVENT ON CHILD TRAFFICKING 29.08.11

 

The Irish Socio Legal Studies Network Event - Trafficking of Children and Separated Children

 

The Socio-Legal Research Centre in Dublin City University will host an event addressing topics of trafficking children and separated children.  Professor Rebecca Wallace from Robert Gordon University and Detective Superintendent Noel Clarke from the Garda Anti-Human Trafficking Unit shall be guest speakers.  A short reception will follow.

Room HG28 - 5pm 29^th August 2011.

Brophy Solicitors 
09.08.11

Amendments to the Immigration Act 2004

NEW LAW IN RESPECT OF OBLIGATION ON NON NATIONALS TO PRODUCE IDENTITY DOCUMENTS ON DEMAND

The Civil Law (Miscellaneous Provisions) Act, 2011 was signed into law by the President on 3 August, 2011. The Act contains amendments to the Immigration Act, 2004  which will positively impact non nationals resident in the State, and particularly those non nationals resident pursuant to the EU Free Movement laws.

The changes derive from the recent High Court judgement of  Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008) in which it was held that Section 12 of the Immigration Act 2004 was unconstitutional. This Section had placed an obligation on all non nationals in the State to produce on demand a valid passport or equivalent document or GNIB Registration Certificate, and refusal to do so without satisfactory explanation was deemed an offence punishable by up to a term of 12 months imprisonment. This Section was the basis upon which many non nationals have been detained in Irish prisons. Many detainees have remained in detention for prolonged periods of time because they could not produce their passport/identity documents and therefore were regarded as on going offenders pursuant to Section 12.

Section 34 of The Civil Law (Miscellaneous Provisions) Act, 2011 contains amendments of Sections 12  (and section 11) of the Immigration Act 2004 which contain particular safeguards in order to render the Act in line with the Constitution. For example, a non-national may now be required to produce on demand “for the purposes of establishing that his or her presence in the State is not in contravention of section 5” a valid passport or other equivalent document establishing his or her identity. Failure to comply with this requirement is an offence, but a defence is clearly outlined as follows;

“In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.”

The section does not apply to persons under 16 years of age. However, unlike the old section 12, there is no longer an exemption for non-nationals born in Ireland.

A further significant change introduced by these amendments is the exclusion from the ambit of Section 11 and 12 of EEA nationals and their dependents exercising Treaty Rights of free movement.

Many cases we are aware of the non nationals are not in possession of these documents through no fault of their own, for example when the documents have become mislaid by the relevant State bodies, as can often happen. We therefore very much welcome the new restrictions on the arrest and detention of non nationals who fail to provide their identity documents on demand. We also welcome the acknowledgement of the rights of the family members of EU nationals to reside in the State on the same basis as their EU family member and Irish citizens alike.

Brophy Solicitors
08.08.11

EU TREATY RIGHTS

RETENTION OF RESIDENCY PURSUANT TO EUTR IN CASE OF DIVORCE/SEPARATION

We confirm that we have received a positive decision from the EUTR Section confirming that our client may retain residency in the State on the basis of EU Treaty Rights on the grant of a divorce from his EU National spouse. In March 2011 we had notified the Department that our client was the holder of residence card pursuant to Directive 2004/38/EC and the 2006 Regulations since December 2007, having been married to an EU national since 2004.  We further notified the Department that he and his wife were recently divorced. We called on the Minster to confirm our clients right to retain his right to reside in the State.  We relied on Article 13 (2) (a) of Directive 2004/38/EC, as implemented by Regulation 10 (2) (b) of the 2006 Regulations, which provides that family members of Union Citizens shall not entail the loss of the right of residence in circumstances where, prior to the initiation of the Divorce, the marriage lasted 3 years, one year of which was in the Member State.  By decision of July 2011, the Minister responded in the following terms, “We can confirm that your client retains his current right of residence”.

We welcome this decision. However, we now call on the Minister to issue similar decisions in respect of pending applications where the applicant is separated, but not yet divorced from their EU National spouse. 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 Article 13/Regulation 10. 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.

Brophy Solicitors

4/8/11

Family Reunion applications: An update

UPDATE ON FAMILY REUNION APPLICATIONS

There has been a recent change to the form sent out by the Office of the Refugee Applications Commissioner (ORAC) to be completed by those applying for family reunion as a refugee.

The previous form was a reasonably short document requesting information regarding the family relationships and the circumstances of the family members. The form also required details of the refugee’s financial and accommodation situation in Ireland.

The new form now being sent out by ORAC is considerably longer. It requests specifics of any dependency between the refugee and the applicants. The form also requests relatively detailed information on the financial circumstances of the applicants, including how they are financially supported, whether they are working, and whether they are capable of supporting themselves financially.

What is particularly noticeable is the updated list of documents now requested by ORAC to support the application. Many of the new documents listed refer to minor applicants and required documents include for example evidence of schooling, evidence of legal guardianship, original death certificates if the minor child’s parents are deceased. The list stretches to 37 documents that may be requested in total as compared to the 10 documents previously requested on the old form.

In some respects the new form may be welcomed. We have often had clients complete the old form and then receive a letter from ORAC listing a huge number of further questions therefore delaying the processing of the application. However, we have ongoing concerns about the level of supporting documentation that the refugee and the applicant(s) are expected to provide to support the application. These documents are often simply unobtainable particularly for Somali clients and there is often little or no consideration given to reasonable explanations of why such documents may not be available to applicants.

We would highlight that any consideration in respect of dependency in such applications must take into account the recent decision of Mr Justice Hogan in the case of RX, QMA and CXN v Minister for Justice Equality and Law Reform, delivered on the 10^th December 2010.  Mr Justice Hogan emphasized that the word “dependency” within the meaning of Section 18 of the Refugee Act refers to dependency in fact - i.e. that dependency existed when the subjects of the family reunification application depended for financial survival on the remittances transmitted by the Applicant, even though she in turn was herself dependant on social welfare payments in this State. Mr Justice Hogan further emphasized that whether the Applicant could maintain the family members in Ireland on arrival is not the test that Section 18 (4) posits.

On a general note, a major ongoing concern for us in relation to family reunion cases are the extensive delays our clients experience in having the applications determined. We were recently instructed by a client who has been waiting since 2007 for his application to be determined, and since this time, his family members have become separated and one of them has disappeared. We are fortunate to have now been able to move this case along for the client but there has been no explanation or apology for the delay to date.

As always, we welcome any queries or comments you may have on this issue.

Brophy Solicitors, 03.08.11

LONG TERM RESIDENCY

Muhammed Saleem v Minister for Justice, Equality and Law Reform, judgement of Mr Justice Cooke, 2^nd June 2011

The Long Term Residency administrative scheme allows persons who have been legally resident in the State for a minimum of five years (i.e. 60 months) on the basis of work permit conditions to apply for a five year residency extension of their permission to remain and thus become exempt from employment permit requirements. In practice, this means a person with 60 months of stamp 1, stamp 4 or stamp 3 is eligible to apply and on a successful application they will be granted a five year stamp 4 permission to remain.

A common difficulty that arises is the applicant fulfils the 60 month reckonable residence requirement at the date of application, but during the course of the processing of the application (which has averaged at 18 months over the last number of years) the applicant becomes undocumented. The Ministerial guidelines on the INIS website are very clear regarding the requirement to have the requisite periods of residency at the date of application, but are silent on a similar requirement during the processing of the application. Lest there be any doubt that the requirement to remain fully documented continues at all times, the case of Muhammed Saleem v Minister for Justice, Equality and Law Reform, (unpublished judgement of Mr Justice Cooke, dated 2^nd June 2011), certainly confirms this point.

Mr Saleem had acquired 60 months of stamp 1 permission on foot of work permits at the date of his application for Long Term Residency in July 2008. In October 2009, Mr Saleem became undocumented, having been previously made redundant. Judicial Review proceedings were issued in October 2009 in respect of the Minister’s delay in determining the application. Mr Saleem was notified of the refusal of his application in May 2010, the ground for refusal being that his permission to remain was not up to date.

At substantive hearing, it was argued on Mr Saleem’s behalf that had not Minister not delayed in determining the application, Mr Salaeem would have been documented and thus within the Minister’s requirements. Mr Justice Cooke held against the Applicant. In doing so, Mr Justice Cooke emphasized that a migrant worker does not have a “right” to a residence permission (as issued pursuant to Section 4 of the Immigration Act 2004), and the grant of such permission is fully within the Minister’s discretion. He stated, “the effect of the publication of a particular scheme such as the long term residency scheme, is at most, to give rise to an expectation on the part of a migrant worker that an application made on foot of the scheme will be considered and either granted or rejected in accordance with he terms and conditions on that scheme”.

Mr Justice Cooke confirmed that it was always a condition of the scheme that an applicant be in gainful employment and legally resident in the State both at the time of the application, and throughout the period when it was bring processed. Regarding the delay submissions, Mr Justice Cooke indicated that it would be impossible to find that the Minister’s delay was so unreasonable to amount to a breach of duty, taking into consideration the evidence at to the volume of such applications received and processed by the Department.

Brophy Solicitors

29.7.11

ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11

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