AG’S OPINION THAT RETURNS TO GREECE RISK BREACHING FUNDAMENTAL RIGHTS

Advocate General Verina Trstenjak last week issued an opinion in a Preliminary Reference Case C-493/10 from the Irish courts regarding the transfer of asylum seekers from Ireland to Greece. The case mirrors the issues determined by the European Court of Human Rights in MSS v Belgium and Greece, which we discussed in our previous posting. The cases essentially concern whether return of an asylum applicant to Greece from a transferring Member State under the Dublin Two Regulations  risks breaching the applicant’s fundamental rights and whether such a transfer would be contrary to EU law. 

The recent reference from Ireland (arising out of M. E. and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform) to the Court of Justice concerns five asylum applicants from Afghanistan, Iran and Algeria who had entered and travelled through Greece as illegal entrants but who had not claimed asylum there. The principal issue to be determined by the Court and that is considered by Advocate General Trstenjak in her opinion is whether the transfer of these asylum seekers to Greece may constitute a risk of a serious breach of their fundamental rights.

You may recall, in the case, M.S.S. v Belgium and Greece, an Afghan asylum seeker entered the EU through Greece en route to Belgium where he claimed asylum. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights.

In her opinion, the Advocate General Trstenjak considers under what conditions it might be appropriate, or even obligatory, under EU law, for Ireland and the United Kingdom (who also made a reference and the cases were joined), notwithstanding the primary responsibility of Greece for the applications, themselves to undertake the examination of those asylum applications. 

The Advocate General opines that the transferring Member State when determining whether to examine an asylum application for which it is not responsible, is required to have regard for the provisions of the Charter of Fundamental Rights.

The Advocate General notes that the Greek asylum system is considerably overburdened and can no longer guarantee that asylum applications will be dealt with in compliance with EU law. She therefore argues that it cannot be ruled out that asylum seekers who are transferred to Greece may, following their transfer, be treated in a manner which is incompatible with the provisions of the Charter of Fundamental Rights.^. 

The AG's opinion concludes therefore that the transferring Member States, the United Kingdom and Ireland, are obliged to assume responsibility under Regulation No 343/2003 and must themselves examine the asylum application. 

It may also be of interest to note that the AIRE Centre and Amnesty International are third party interveners in this case and have issued a press release summarising the key findings in the opinion of Advocate General Trstenjak. 

Brophy Solicitors

26.09.11

ZAMBRANO : THE UK AND IRISH POSITION COMPARED

The following statement was recently posted on the UK Border Agency Website;

“The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;

evidence of the relationship between the applicant and the British citizen; and

adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.”

The UK position is now clear in a number of respects;

In order for rights to arise pursuant to the Zambrano case (or Treaty of the Functioning of the European Union), the applicant must be the parent of a British citizen child, as opposed to the parent of a child of a different Member State citizenship.  The reasoning is that in order for a right to reside for the third country national parent to arise, there must be a risk that the Union Citizen child would be forced to leave the territory of the Member States if that right was not granted, such as the Columbian parents of the Belgium children in Zambrano. The argument that the rights arising from Zambrano will only have effect if the child is to be removed from the territory of the Member States has also been raised in some of our cases in the High Court, and we expect this point will be fully argued out in upcoming hearings in the next court term.

The Irish position is also that the Zambrano judgement applies only where the child is of Irish nationality within Ireland.  However, contradictory policy statements have been made by the Minister in respect of which persons come within the remit of the Zambrano case. Initially, it was indicated that parents of Irish citizen children who are outside the State do come within the ambit of Zambrano, and last week our office received a positive determination on one such case. However, contradictorily, the current policy statement is stated on the INIS website as follows;

“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.”

The idea that the rights arising from Zambrano do not apply to parents outside the State has created a most unusual situation – those parents who follow correct procedure by applying for a visa to enter the State with or to join their Irish citizen child will be refused, when those who enter the State without a visa can immediately submit an application for permission to reside and work and  expect to be approved within a number of months. This categorization of parents of Irish children between those resident within or outside of the State is simply nonsensical .

In the above statement, the Border Agency’s use of the word “sole carer” would seem to exclude from the ambit of Zambrano a parent where that child’s other parent has lawful residence and can continue to reside in the Member States with the child. Such an interpretation appears to place greater weight of a child’s right of free movement as compared to a child’s right to the company of both parents, and is difficult to reconcile with the “Best Interests of the Child Principle”, confirmed by the European Court of Human Rights as the primary factor in cases involving children.

In describing the EEA national from whom the Treaty rights derive, the UK Border Agency uses the term “dependant British citizen”, while the Minster of Justice in public statements has referred to “dependant minor children”. The Irish interpretation that the Union Citizen child must be a minor child excludes those children who are between the age of 18 and 23 in full time education. In one such case we act on, the Minister has explicitly confirmed that Zamrbano does not apply to a 20 year old Irish citizen who is in full time education and fully dependant on her Pakistani father. A deportation order has been issued against her father, and if effected, she will be required to return to Pakistan.

The use of the phrase “carer ” of a British citizen if also of note. In a recent correspondence received from the Department of Justice, our client who is the father of an Union Citizen child  has been requested to provide evidence that he is the “primary carer” of that child. The Department have taken a position that our client is not a primary carer because he is in full time employment and the child is predominantly looked after by the mother while the father works. The fact the family is solely financially supported by the child’s father appears not to considered as significant as the role of the mother who is caring for the child.

We note that the Border Agency has confirmed that the UK will be making amendments to  the Immigration (European Economic Area) Regulations 2006  to provide a right to reside for persons falling within the ambit of the Zambrano Judgment. Given the interpretations as highlight above, we hope they wait for further clarification for the Court of Justice before implementing these amendments!

Pending the proposed statutory amendments, the UK has undertaken to provide applicants pursuant to Zambrano temporary rights to reside and work pending determination of their applications.  This is a very welcome and necessary development. The Department of Justice has not taken this step. Here in Ireland, applicants pursuant to Zambrano, (or pursuant to Chen for that matter)  are not issued with temporary permission to remain, or permission to work, while their applications are being processed. This position is inconsistent with the process applied to those applicants pursuant to Directive 2004/38/EC, who are issued with six month temporary permission to remain and work on submitting a valid application. We see no reason why applicants pursuant to Chen and Zambrano (which are actually pursuant to the Treaty of the Functioning of the European Union) should be treated very much less favourably than applicants pursuant to Directive 2004/38/EC.  The Department of Justice is in effect operating a two tier system of rights, depending on whether the family member of a Union Citizen does or does not fall within the terms of the Directive. We think this is illogical, but also discriminatory.

We have been informed that the Minster has set up a special unit within the Repatriation Section to process applications pursuant. We can only presume that internal guidelines have been prepared to clarify the parameters of that case and the system which will be applied to processing the applications. The current processing system is unclear. For example, it has been indicated to us in Department of Justice correspondences that Zambrano applications are being considered in chronological order. However, in reality this appears not to be the case given the very inconsistent time frames in which our clients are receiving determinations.

We call on the Minister to follow the UK example and provide a clear public policy statement setting out the ambit of the Zambrano case, and confirming the details of a fair and transparent processing system for  these applications. In particular, we request that all Zambrano/Chen applicants be provided with temporary permission to remain pending determination of the Application. We also request that the Minster revert to his initial policy of including all parents of Irish citizen children within the remit of Zambrano.

23.9.11

Brophy Solicitors

Lebanon National Day 2011

http://www.facebook.com/l.php?u=http%3A%2F%2Firishlebanese.com%2F&h=0AQDs9s4jAQBWJrJvAnwJ4zBlEFXVAlO6sV6bE4D6oG0Ilw

The Irish Lebanese Cultural Foundation are having a Cultural day, see below...

Please pass this to all your family and friends to join us on a cultural day with diverse interests and focusing on integration.

The opportunity celebrates Lebanon National Day and 10 years of the establishment of the Irish Lebanese Cultural Foundation.

It may also be an opportunity to spend a weekend in Kilkenny visiting the marble City , its medieval Castle, Cathedrals and dwellings.

Looking forward to meeting you all.

Guy Jones

Irish Lebanese Cultural Foundation

FAMILY REUNIFICATION

FAMILY REUNIFICATION - A HAPPY ENDING FOR ONE CLIENT

We  received a number of positive decisions in pending applications for Family Reunification last week. One case is particularly a cause for celebration in our office, because it is a case that has until now caused us much concern.

Our young client had come to Ireland as an unaccompanied minor of seventeen years of age in 2005. Prior to his travels to this State, he had become separated from his family following a rebel attack on his village during which his parents had been killed. He was granted refugee status within less than three months. When he regained contact with his siblings, he submitted an application for family reunification in September 2006. He was of eighteen years of age at the time of the application was submitted.

In September 2007, it was indicated to our client that the family reunification process application would take a further 24 months to process. He received no further correspondences until notified in January 2009 that the application had been refused on the basis that sufficient documentation had not been submitted in support of the application. The refusal letter indicated that there was no appeal avenue open to our client.

Through advices from the Vincentian Refugee Centre, our client chose to seek legal advice from this firm in recent months. He instructed us that he wished to re open the Family Reunification application for his two remaining siblings.

As a first step, we applied for a copy of his file pursuant to the Freedom of Information legislation. When we became aware of the details of our clients first application, we realised that the breaches of fair procedures were of an extraordinary nature. For example, all documentation requested by the Department had been submitted by our client. The full processing time of the application was two years and four months, and it appeared that there was no activity what so ever on the file for a period of one year and four months, between September 2007 and January 2009 when the application was refused.

We believe that our client’s status as a young and unaccompanied applicant for family reunification triggered an onus on the Minister to make every effort to assist him in the application process and determine the application as expeditiously as possible.  We have no doubt that the Minister of Justice failed in his obligations to our client, the consequences of which have been immense for him. In particular, the unexplainable and lengthy delays in the processing of the application, coupled with an ungrounded and unfair negative decision, are cause for great concern. The fact that our client had submitted  the family reunification application  as a separated and unaccompanied young person of 18 years old make these failures in fair procedures all the more concerning.

We were very clear in our approach with the Department. We demanded the case be immediately reopened, fully considered and a new determination issued as soon as all relevant documentation was submitted. The Department agreed to our requests, and last week, approved the application for family reunification in respect of our clients siblings.  He is now in the process of applying for visas for them to join him in the State. He is absolutly delighted, and we wish him and his siblings the best of luck in their new future together in Ireland.

Brophy Solicitors

20.9.11

FAMILY UNITY AND ABUSE OF THE IMMIGRATION SYSTEM

UK POLICY TARGETING ABUSES IN FAMILY MIGRATION 

On our blog post of yesterday, we commented on the legal lacuna in domestic Irish law causing marriages of convenience to be lawful in the State. We called on the government to take immediate action to amend this situation and actively target the abuses in the EU Treaty Rights process.

Yesterday, the UK Minister for Integration, Damien Green, also addressed this topic in a speech to the Centre for Policy. He referred to the UK governments on going consultation process in respect of reforming family migration to the UK, which had been launched in July 2011. He indicated that this consultation group are working towards tackling abuses in the “family migration route”. The Minister referred to the following proposals that are being considered;

• define more clearly what constitutes a genuine marriage for the purposes of the immigration rules to help identify sham and forced marriages;
• introduce a minimum income threshold for those sponsoring family migrants to ensure they are supported at a level that helps integration;
• extend the probationary period before spouses and partners can apply for settlement in the UK from 2 years to 5 years to test the genuineness of relationships and to encourage integration into British life before settlement is granted; and
• require spouses, partners and adult dependants aged under 65 applying for settlement to be able to demonstrate that they can understand everyday English.

It is frustrating, but not surprising, to see the repercussions arising from a minority abuse of the immigration system in the UK, which then leads to a more difficult and restirctive application process for the genuine applicants. 

By way of comparison, it is very difficult to understand how the Irish government can allow the current position in respect of the non criminalizing of the “marriage of convenience” to stand. By not addressing the problem by way of criminal legislation, the fraudulent industry of surrounding this area can only prosper, and the Gardai’s hands are tied. Both legislative amendments and active policy making towards targeting marriages of convenience is essential in Ireland. However, restricting family unity rights for genuine family members is clearly not. 

16.9.11

Bropy Solicitors

EU TREATY RIGHTS

SHAM MARRIAGES: TV 3 DOCUMENTARY

We were pleased to be featured on a documentary by Paul Connolly, investigative journalist, on sham marriages that was screened earlier this week on TV3.

The documentary examined the lucrative business that has developed in Ireland where non-EU nationals exploit EU nationals, often young women from Latvia, in order to secure residency rights in the State through marriages of convenience. Non-EU nationals were seen to be taking advantage of the current legal lacuna with respect of marriages of convenience and securing the right of five years residence on EU Treaty Groups, but on the basis of a fake marriage.

Kevin Brophy of Brophy Solicitors featured in the documentary arguing that the Minister must act to criminalise marriages of convenience or sham marriages.

You may have read our previous blog posting on this very issue, where we again argued for legislation in this area. The Minister made a speech on this issue in June 2011 highlighting his own concern about irregular marriage patterns in Ireland and referred to amendments to the Immigration and Residence Bill designed to deal with the issue of marriages of convenience. We await the publishing of the Bill and hope that it will fill of the existing legal lacuna which is of great disservice and frustration of all genuine applicants in the EU Treaty Rights process.

Brophy  Solicitors

14.09.11

EU TREATY RIGHTS UPDATE: RIGHTS OF OTHER FAMILY MEMBERS

A very recent decision of the UK Upper Tribunal (Immigration and Asylum Chamber) explores the scope of Article 3(2) of Directive 2004/38 and what constitutes an ‘other family member’ or OFM. The full text of the decision in Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) issued on 22^nd August 2011 is available here.

The case concerned a German national, of Nigerian origin, who was exercising his EU Treaty rights as a worker in the UK. An application was made for permission to reside in the UK for two of his dependants, relying on Article 3(2) of the Directive 2004/38. The German national had been providing the two applicants with financial support to Nigeria but had never lived with them in the same household. The application had been initially refused and appealed unsuccessfully, but was appealed further to the Upper Tribunal giving rise to these proceedings.

Article 3 (2) of Directive 2004/38 states:

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)                        any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)                        the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

This Article therefore extends rights of free movement to other family members not covered in Article 2(2) of the Directive who include in summary: the spouse, partner, direct descendants under 21 of the EU national or spouse/partner, or dependant direct relatives in the ascending or descending line of the EU national or spouse/partner.

A core issue determined in Moneke was whether, to qualify as an ‘other family member’ for the purposes of Article 3 (2), the ‘other family member’ must be dependent on the EEA national and have resided together in the same household with the EEA national.

On this issue, Mr Justice Blake determined as follows: “A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.”

A second core issue assessed by Mr Justice Blake was whether the term “in the country from which they are from ”, as per Article 3 (2)(a), refers to either the EEA national or the other family member. He concluded that the term “they” was intended to mean the other family member, and the country from which they have come from means either their country of origin or the country from which they are arriving.

The Upper Tribunal took a purposive reading of the Directive. It was recognised that in an age of trans-national marriages, there will be increasing numbers of EEA families where the EEA national has not lived in the country where his spouse’s relatives live and concluded:

“We cannot accept in the absence of clear legislative words that enormous numbers of “foreign” OFM dependants are excluded from the scope of the Directive by the happenstance of international geography …

An interpretation that cuts all these applicants out of consideration in limine would appear to be discriminatory on the grounds of national origin without any justification for such an approach. We are entitled to interpret EU legislation in the light of the fundamental principles of EU law and these include the principle of non discrimination reflected for example in Article 21 of the EU Charter on Fundamental Rights.”

This decision provides some welcome clarification on the complex issue of which family members of EEA nationals qualify for the rights to enter and reside in a host member state with the EEA national. It also indicates that the scope is much broader than that currently being applied in this State.

Our own experience shows that the there is a lack of consistent approach from the Department of Justice in assessing and interpreting individual cases in respect of the Regulations and the Directive, particularly regarding the scope of inclusion with the various categories of family members.   However, it must be accepted that it is a very complex area of EU Treaty Rights law, and the Moneke judgement highlights the varying interpretations by the UK courts also.

To add to the complexities, we have noted that there are a number of discrepancies between the Regulations and the Directive 2004/38. For example, the Regulations categorise family members into two groups; ‘qualifying family members’ and 'permitted family members'. These categories can be equated to those family members covered by Article 2(2) of the Directive and the ‘other family members' as covered by Article 3(2) of the Directive. While the Directive indicates that the host member state “shall" facilitate entry and residence rights in respect of both categories of family members, the Regulations distinguish between the two categories in this regard.  The Regulations direct that the State  “shall” allow a 'qualifying family member' to remain, while the State “may” allow a 'permitted family member' to remain.

Furthermore, the Directive includes partners of an EEA citizen in both Article 2 (2)(b) and  Article 3 (2)(b), while the Regulations categorize partners as a permitted family member only. Thus, pursuant to the Regulations, a partnership must exist in the country from which the non EEA national have come from.

A basic principle of EU law, called Direct Effect, means that in the event of a discrepancy between an EU Law instrument and a national instrument transposing the EU law, an individual may rely directly on the EU law instrument when the rights it creates are sufficiently clear.  Directive 2004/38 has been held to be directly effective in a previous case taken by this office - Gogolova & Ors -v- MJELR, [2008] IEHC 131 (2008). On the basis of this principle, we can rely directly on the rights enunciated in the Directive, as opposed to the Directive.

It is also note worthy that there is a preliminary reference pending with the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) specifically on this issue. We are keeping an eye out for this case and will of course keep you updated!

Brophy Solicitors

06.09.11

PUB QUIZ FOR SOMALIA AND HORN OF AFRICA FAMINE

African students Association of Ireland (ASAI) and the Sports against Racism in Ireland (SARI) are hosting a Pub Quiz to raise money for Somalia and Horn of Africa Famine. Its a great cause and we hope that many of you can make it.

http://asa-ireland.blogspot.com/2011/09/pub-quiz-for-somalia-and-horn-of-africa.html

See below:

African students Association of Ireland(ASAI) and the Sports against Racism in Ireland (SARI) would like to welcome you to participate in the PUB QUIZ to raise donations for Somalia and Horn of Africa Famine. The PUB QUIZ will take place next week on wednesday, 7th of September, 2011 at the Mssrs. Maguire Pub, in Burgh Quay, Dublin 2. It is a pub next to Q-bar. It will start at 7:30pm The entry for each person is 5 euro, and participants can form a team of minimum 4 and maximum 10 people. The first three winning teams will receive miscellenious prizes ranging from items from Africa, from here, to dinners in African, and Indian and other restaurants. You can book as team or simply as an individual. Questions will be general ones on variety of interesting subjects. There will be also a round or two of questions about Africa.

You all cordially welcome to participate in event. All the proceeds of the evening will be delivered to organizations working in field helping people in Somalia and in the Horn of Africa region.

To participate just come on the day at Mssrs. Maguire Pub, and if you wish send us email or call to let us know you will be coming before hand, call David Kortukohun at 0857625969, or David Nyaluke at 087 66 485 76. Or email at asaiconference@gmail.com

Best regards,

David Khortukohun

African Students Association(ASAI)
Coordination office,
Multicultural Resource Centre,
44 Lower Gardiner Street,
Dublin 1.
Blog: http://asa-ireland.blogspot.com

NEED FOR EFFECTIVE ASYLUM REFORM

In an opinion piece in today’s Irish Times, Mrs Justice Catherine McGuinness highlights the staggering backlog of 1,400 asylum and immigration cases waiting to be heard in the High Court and calls for a robust asylum system that will save time, money and promote fairness.

Mrs Justice Catherine McGuinness highlights the serious shortcomings of the current asylum process. She notes that the Refugee Appeals Tribunal affirms more than 95 per cent negative decisions; it lacks transparency, independence and proper reasoning in its decisions. This gives rise to the high number of aggrieved applicant seeking redress by way of judicial review in the High Court. 

There are delays of approximately 27 months for initial hearing of such cases in the High Court.  The current system is most disastrous for the applicants with genuinely strong cases, such that they should have been granted refugee status at the outset but through errors on the part of the Tribunal Member, their application was wrongfully refused. There are many asylum applicants from countries such as Somalia, Afghanistan and Sudan, who have come from situations of serious harm or torture, and they are now caught in an administrative nightmare of waiting in High Court lists, while living in state funded direct provision accommodation centres.  These applicants will be left waiting for many years. 

In one case taken by this office, our client has gone through the whole High Court Judicial Review process on two occasions, and is now awaiting a third determination by the Refugee Appeals Tribunal. We have no doubt to the genuine nature of his case, but very unfortunately for this man, he has had two very poor quality Tribunal decisions and has been in the system for many years. There are many more asylum seekers like him.

It is well established that such seemingly endless waiting periods can have serious impacts on the mental well being of asylum seekers. However, there is little point in raising such points in the High Court in attempt to have certain vulnerable applicants’ case accelerated with priority. It has been indicated by one of the High Court judges that anything bar a life-threatening illness would fail to achieve priority in the List.

Such a system creates a profound sense of hopelessness, if not depression, amongst the applicants who are waiting years to have their cases heard. The situation in Ireland in respect of these delays is now worse than in Greece, a country which was recently found by the European Court of Human Rights to be so bad that asylum seekers could not obtain a fair hearing and that asylum seekers should not be transferred from other Member States to Greece.

We therefore welcome and support the comments of Mrs Justice Catherine McGuinness. Without political intervention and comprehensive new immigration and asylum legislation, it seems that Ireland, like Greece, may be held up before the European Court of Human Rights as a State acting in systematic breach of the fundamental rights of asylum seeker applicants.

Brophy Solicitors

02.09.11

The Family Reunification Process for Refugees

Each month, the Office of the Refugee Applications Commissioner publish a statistical report in respect of both the Asylum and Family Reunification Applications currently being assessed. On reviewing the report this month, we were struck by the statistics in respect of the Family Reunification application process. We learned that between January 2011 and the 31^st July 2011, ORAC has received 148 applications, including 258 dependants. This is an average of 21 applications a month. This is not an exceptionally large number of applications. Of these applications, most of the applicants are refugees from Somalia, Iraq, Afghanistan and Sudan. Each of these countries are, or have recently been, in serious conflict and each are to some degree suffering from large scale humanitarian crisises. From our experience working with clients from these countries,  many of the applications would be submitted respect of the refugee’s spouse and minor children, and thus would fall into the Non Discretionary category. This means that the Minister is obliged to grant the application on the basis that the Minister is satisfied that the subjects of the applications fit within the spouse/minor child category. It has long been accepted by the High Court that non discretionary applications should require far less investigation and processing time as compared with discretionary applications. 

Therefore, why then is the average processing time for Family Reunification applications approximately two years?

We regard all applications for Family Reunification to be urgent, and some extremely urgent.  We believe that it is completely unacceptable that a family member of a refugee who has an entitlement to travel to and reside in Ireland should wait in a refugee camp, sometimes in a famine zone, for an average of two years  before receiving the green light from the Department of Justice. The fact that many of the cases we work on involve applicants aged between 18 to 23 who came to the State as minor children and are now applying to be re united with their parents and siblings makes this delay nothing short of scandalous.

We appeal to the Department of Justice on behalf of our clients to expedite the current processing times for the Family Reunification process to a more reasonable period of no more than six months per application. 

 

Brophy Solicitors

1.9.11

THE BEST INTEREST OF THE CHILD PRINCIPLE

RECENT UK CASE LAW ON THE BEST INTEREST OF THE CHILD PRINCIPLE

In assessing a right of residence for the parent/guardian of a child, the “Best Interests of the Child” principle is of core importance in reaching a fair and proportionate decision.  The "best interests of the child" broadly means the well being of the child. A consideration of where these best interests lie will involve the decision maker assessing whether it is reasonable to expect the child to live in another country.

In a sequence of cases before the Irish High Court involving deportations of parents of Irish citizen children, (see case of Alli and Isobor and the Minster for Justice), the “Best Interests of the Child” principle became overshadowed by a different legal principle, which one could call the “legitimate aims and obligations of the State” principle.  Theses cases set a precedent that an Irish citizen child’s rights to family life is not breached by a deportation order against the child’s parent unless there is “insurmountable obstacles” preventing the family moving to the home country of the parents and carrying on their family life there.

The UK Supreme Court have set a very different threshold for the assessment of such cases in focussing first and foremost on the best interests of the child, whatever the nationality of that child. The case of ZH (Tanzania)[1] (concerning the removal of a non-British parent of a UK citizen child) held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale in the above case provided the leading judgment:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

Following ZH (Tanzania), the obvious question became how far can the “Best Interest of the Child ” principle be extended? Could it be argued that it is always in the best interest of a child to remain in a relatively wealthy and socially protected State such as the UK/Ireland, by way of comparison to the State of nationality of the child? Could the “Best Interest of the Child ” principle be successfully applied therefore to children of non EEA nationality seeking to remain in the UK/Ireland on the grounds of  better standard of living perhaps?

In the case of  E-A (Article 8 – best interests of child) Nigeria, judgement issued on the 22^nd July 2011, Mr Justice Blake, (President of the Upper Tribunal, Immigration and Asylum Chamber) shed light of these queries while assessing the rights of a family of Nigerian citizens to remain in the UK pursuant to Article 8 of the European Convention of Human Rights. The family were residing in the UK on the basis of student/ dependant temporary permission, and arguments were made on behalf of the children that it was in their best interest to remain in the UK rather than be returned to Nigeria.  It was interesting to see how Mr Justice Blake interpreted the Supreme Court’s case of ZH (Tanzania) in light of the facts before him, ultimately finding that neither Article 8 or the “Best Interest of the Child ” principle was infringed by returning the family to Nigeria. The following are the principles points highlighted in the judgment;

(i)              The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii)            Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case

(iii)          During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv)               Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v)                The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

We hope to see the Irish Immigration process moving in similar line to the UK, that is to make the “Best Interest of the Child ” principle a matter or primary consideration is cases involving the residence rights of children and their parents, what ever the nationality of the child. 

31.8.11

Brophy Solicitors

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

“IMMIGRATION IS, ON THE WHOLE, GOOD FOR ECONOMIES”

We were interested to read the article 'Let Them Come' in this week’s Economist that concludes: “Immigration is, on the whole, good for economies.”  

The Economist argues that migrants are generally good for rich countries, even in these recessionary times. The flexibility and willingness of new workers migrating in can boost productivity and encourage innovation. But when economies are at low ebb, governments are reluctant to leave migration flows to the labour market and are quick to reintroduce limited border controls, they argue.

Such a response is starkly illustrated in the UK with the introduction of the points based immigration system and the recent so-called ‘cap’ on inward immigration. But even such efforts to control inward migration do not always work. An article in the Guardian newspaper last week commented on the actual rise in immigration into the UK as EU migrants arrive to fill gaps in the employment market.

Meanwhile, here in Ireland, we have seen a progressive tightening of the rules on employment permits. Our own experience shows that it is becoming increasingly difficult for applicants to obtain permission to work in the State. In visa refusals, we see the oft-repeated argument that the applicant risks becoming a burden on the State: economic considerations are alive and well in the Department.

But the Economist makes some sound arguments in favour of flexibility and leaving economic migration flows to the labour market. Migrants are needed to fill skills gaps; they provide a flexible, mobile work force. When they are here, they work hard and are valued employees. Concerns about public services and immigration in such hard times are understandable. But immigration is generally good and even in these tough times, the government should think twice before tightening border controls any further.

Brophy Solicitors

30.08.11

STAMP 1 A – RECKONABLE OR NOT?

In the recent months, our office has received a substantial number of queries from clients who are ACCA trainee accountants and resident on Stamp 1 A status. The queries relate to whether their status is reckonable for the purposes of acquiring Irish citizenship by birth for their children, pursuant to the terms of the Irish Nationality and Citizenship Act 1956 (as amended by Section 4 of the Irish Nationality and Citizenship Act 2004). They also inquire as to whether their status is reckonable in respect of the Naturalization process, pursuant to of Section 14 of the Irish Nationality and Citizenship Act 1956.

The cases that have come to our attention include contradictory directions from GNIB, the Department of Justice and the Passport Office as to whether the applicant’s Stamp 1 A is reckonable or not. In a number of cases, the clients have received letters from GNIB indicating that their periods of Stamp 1 A are reckonable, while the Passport Office has regarded the same periods as not reckonable in respect of applications for passports for their children. 

Each of these clients who have been refused passport for their children have instructed that they are aware of trainee accountant colleagues on Stamp 1 A status who have been issued passports for their children in similar circumstances. According to one client’s instructions, such a passport was issued on this basis within the recent months. They are understandably very frustrated over such inconsistant policies in respect of elibibility for Irish citizenship by birth.

Stamp 1 A is the designated stamp for trainee accountant. It is described on the INIS website as follows; “This person is permitted to remain in Ireland for the purpose of full time training with a named body until a specified date. Other employment is not allowed.”

An Information leaflet titled “General Information on Irish Citizenship”, as posted on the INIS website, explains the entitlement to citizenship by birth as follows;

“A person born in the island of Ireland after 1 January 2005 is entitled to Irish citizenship only if, during the four year period immediately preceding the person’s birth, one of the parents has been resident* in the island of Ireland for a period of not less than three years and neither parent was entitled to diplomatic immunity in the State”

A note in respect of residency is added as follows;

“certain residence is not reckonable, including unlawful residence, residence granted for the purpose of study and period where there was a provisional permission to reside granted pending determination of an asylum application ”

Further difficulties arise in respect of Stamp 1 A status in the Naturalization process. It is not clear stated in the recent Departmental Guidelines of July 2010 whether a stamp 1 A is reckonable or not for the purposes of Naturalization/ Citizenship by birth. We have noted that the new Citizenship Application Form indicates that stamp 1 A is not reckonable. However, the new reckonable residence calculator on the INIS website indicates stamp 1 A is reckonable in the calculation.

It appears from some letters we have seen from the GNIB that the status of trainee accountants on stamp 1 A is reckonable. While in other letters issued from the GNIB the trainee accounts have been registered on stamp 1 permission, as opposed to stamp 1 A. Thus, their residence on stamp 1 is reckonable residence. Sometimes, it seems that the GNIB have used the stamp 1 and stamp 1 A interchangeably.

We have sought clarification from the Citizenship Section of the Department of Justice, and I have been informed in writing that stamp 1 A is not reckonable. However, when we rang the Citizenship Section in July last to seek clarification on the point and we were informed that stamp 1 A is “definitely” reckonable for the purposes of Naturalization. We asked that this point be confirmed, and we subsequently received a further telephone call to confirm that Stamp 1 A  was reckonable.

We have requested Citizenship Section to provide us with copies of the current and past Ministerial guidelines in respect of reckonable residence for the purposes of Irish Nationality and Citizenship Act 2004. They have not yet been provided to us.

We have today again requested from the Minster provide us with a clear statement as to the current Departmental policy in respect of this issue.

We submit that residency permission under stamp 1 A is designed for trainee accountants, as opposed to students, and therefore evidenced by a variation of the Stamp 1 (worker permission) as opposed to stamp 2 (student permission). Furthermore, the conditions of the ACCA qualification process necessitate that the trainee obtains work experience.We submit that it is certainly arguable that Stamp 1 A should be properly regarded as reckonable. However, most importantly, we would argue that it is unacceptable for such unclear and contradictory policies, directions and decisions to continue between the relevant bodies in respect of a matter as fundamental as the eligibility of Irish citizenship. 

Brophy Solicitors

25.8.11