EU TREATY RIGHTS: RIGHTS OF RESIDENCE IN THE EVENT OF SEPARATION

We are currently challenging a decision of the Department to revoke our client’s permission to reside in the State in circumstances where he has lived with his Union citizen wife for five years and is now separated but not divorced. As we have noted in our previous blog posts, there appears to be a lacuna in Directive 2004/38/EC and the Regulations with respect of residency rights of third country national spouses who have separated from their Union citizen husband or wife but have not yet obtained a divorce. This is one such case in which we are arguing that our client retains his right to reside despite the separation pursuant to Article 13, Directive 2004/38/EC. 

Our client is a non-EEA national who married and resided with an Union citizen between September 2005 and March 2010. During the period of their marriage, both husband and wife were working or studying. The couple separated in March 2010 and our client’s wife has now left the State. The Department then sought to revoke our client’s permission to reside in the State on the basis that his marriage to an Union citizen had broken down. We responded making submissions that our client retains his right to reside in the State pursuant to Article 13 of Directive 2004/38. 

Article 13(2) relates to the right of residence by non-EEA family members in the event of divorce, annulment of marriage, or termination of registered partnership. The relevant section states:  

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State ...

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

On behalf of our client, we are arguing that it would be contrary to our Constitution’s recognition of the special position of the family in the State, the need to protect the institution of the family, and the restrictions which the State impose on the obtaining of divorce (including the need to live apart for four years), 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. 

In arguing that the residency protections in Directive 2004/38/EC should extend to our client who is separated, but not divorced, we are relying on Recital 15 of the Directive that provides:

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

It appears from the recital, that the provisions of Article 13 of Directive 38/2004/EC should be purposively construed such that a third national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. Otherwise, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence which appears to be an encouragement to divorce, and is contrary to our Constitution. A further difficultly in Ireland is that under Irish law a couple must live apart for four years before a decree of divorce can be granted.

We will keep you updated on the progress of our challenge. If you have any questions or comments, please contact us!

Brophy Solicitors

12.10.11

ECHR DECISION: SERIOUS OFFENCES, FAMILY LIFE AND RELIANCE ON ARTICLE 8

A recent decision of the European Court of Human Rights in AA v United Kingdom (8000/08) [2011] ECHR 1345 (20 September 2011) determined that a young Nigerian applicant’s return to Nigeria would violate his Article 8 right to respect for his private life as a young adult. The decision provides helpful consideration on the proportionality exercise where a serious offence has been committed but appears to be less instructive on whether relationships between adult children and their parents/siblings may constitute family life for the purposes of Article 8.  

The facts in brief were as follows: a Nigerian had arrived lawfully in the UK at 13 years to join his mother and two sisters. At the age of 15, he was convicted of raping a 13 year old girl for which he was sentenced to 4 years youth detention. On completion of his sentence, the applicant achieved academically, maintained family ties with his mother and adult sisters, and did not re-offended and was found to be at low risk of re-offending. The UK Home Office sought to deport the applicant, relying on the serious criminal offence committed and the absence of any family life within the terms of Article 8. The Strasbourg Court held that the deportation of the applicant would violate his Article 8 right to respect for his private life.

The majority of the Court’s considerations were with respect of whether deportation was necessary for the “prevention of disorder or crime” as was contended by the UK government. The Court noted a number of factors that mitigated against the seriousness of the original offence. Of particular importance was the fact that since his release from detention seven years ago - and the court took the date of its own consideration as the relevant date in line with its approach in Article 3 cases - the applicant had done nothing to support the UK government's contention that his deportation was necessary for the 'prevention of disorder or crime'. The Court noted that the offence was committed whilst the applicant was a minor and the best interest of the child were not furthered by severing family ties necessary for reintegration of a child offender. The Court placed reliance on the significant period that had elapsed since the offending behaviour and the impressive achievements of the applicant during this time. Reliance was also placed on the fact that the UK Asylum and Immigration Tribunal had previously accepted that the applicant presented a low risk of re-offending. Overall, the likelihood of the applicant engaging in further criminal behaviour was held to be a key consideration where risk to public order was being relied on as the legitimate aim justifying expulsion.

With respect of the Applicant’s family life, the Court noted that the applicant had spent half his life in the UK maintaining relationship with his mother and sisters and had not had contact with his father, residing in Nigeria, since 1991. The Court’s conclusions with respect of the Applicant’s family life in the UK were brief and stated as follows:
"Finally, as regards the applicant's ties with the United Kingdom and with Nigeria, the Court observes that the applicant continues to reside with his mother and has close relationships with his two sisters and an uncle, all of whom reside in England. He has completed the majority of his high school and further education in the United Kingdom and has now commenced a career with a local authority in London. He is also a member of a church community. While he spent a significant period of his childhood in Nigeria, he has now not visited the country for eleven years. He has had no contact with his father since 1991."

Essentially, there was no clarification by the Court in this decision on whether relationships between adult children and parents/siblings can amount to family life in deportation cases. The majority of the Court’s considerations related to whether deportation served a legitimate aim of the “prevention of disorder and crime”.

Lourdes Peroni, in her recent blog post on the UK Human Rights blog provides an extremely instructive overview and discussion of the Court’s decisions on the status of relationships between adult children and parents/siblings and family life for the purposes of Article 8, with a starting point as the Court’s decision in this case of AA. Ms Peroni notes that while in Maslow v. Austria such family ties were accepted as constituting family life, where the young adult did not yet have family of their own, in the earlier decision of Slivenko v. Latvia it was held that an additional element of dependence would be needed for such relationships to constitute family life.

While the decision in AA therefore does not provide clarity on the status of relationships between adult family members for the purposes of Article 8, it does assist in clarifying what factors are to be accorded weight in the proportionality exercise where a serious criminal offence has been committed.  Finding that removal of the applicant to Nigeria would constitute a violation of Article 8 of the Convention, the Court concluded:
"The foregoing considerations are sufficient to enable the Court to conclude that the applicant's deportation from the United Kingdom would be disproportionate to the legitimate aim of the "prevention of disorder and crime" and would therefore not be necessary in a democratic society. There would accordingly be a violation of Article 8 of the Convention if the applicant were deported to Nigeria."

Brophy Solicitors

04.10.11

BROPHY SOLICITORS CASE ANALYSIS - EZENWAKA

Judge Hogan’s interesting judgement in Ezenwaka!

Ezenwaka & Anor – v- MJELR [2011] IEHC 328

BACKGROUND:

This judgment makes for good reading. It concerns a Nigerian mother Ms Ezenwaka, and her two children who in error, were granted a visa to enter the State and join Mr. Ezenwaka (husband to Ms. Ezenwaka and father to her children).  He was resident in Ireland under the IBC Scheme, a scheme which did not permit such family members to join a beneficiary under the scheme in the State.

Mr. Ezenwaka is the father of an Irish child, Samuel but was not married to the mother of his child.  He had on one occasion returned to Nigeria to see his wife and children and felt he needed to be re-united with them.  A ‘D Type’ Visa was granted permitting family reunification by the Irish embassy in Abuja in 2008.   On the basis of this, the Ezenwakas significantly altered their position in Nigeria.  Ms. Ezenwaka sold her car, moved out of the family home, gave up her job and purchased tickets for the flight in anticipation of a permanent move to Ireland. 

The family was refused entry to the State by immigration officials at Dublin Airport who formed the opinion that the visas had been issued in error and this was confirmed by contact with the Minister’s office who in turn explained that the IBC 05 policy did not cover this situation.  The officials discovered that the Irish citizen child had been born to another woman who was not Mr. Ezenwaka’s wife.

Accordingly Ms. Ezenwaka and her two children returned to Nigeria were they remained ever since. 

ANALYSIS:

Judge Hogan commented that ‘there is no doubt but that this entire episode was deeply disappointing- perhaps even traumatic – for the Ezenwakas.  Certainly, it is not difficult to imagine the acute anguish and hardship which the family must have endured by agreeing to leave Nigeria permanently and o make a long journey to Ireland via Turkey, only to find that they are the victims of the unfortunate bureaucratic misunderstanding.’   The judge maintained that it was clear that the Ezenwakas had a legitimate expectation that they would be permitted to land ‘subject to other conditions..’

The immigration notice that issued to the family was issued pursuant to Section 4 (3) (j) of the Immigration Act, 2004 on the ground that their admission into the State would be contrary to public policy.  The judge took issue with the decision to refuse based on ‘public policy’ as specified under the act i.e. it connotes a situation where that personal conduct of the immigrant poses a real and immediate threat to the fundamental policy interests of the State.   In the present case, the judge commented that while the State was fully entitled as a matter of policy to restrict the operation of the IBC Scheme, and to take the view that the admission of this family did not come within the scope of that policy, ‘the concept of public policy in the context in which the phrase appears in s.4(3)(j) is a very different one. Neither Ms. Ezenwaka nor her children pose a threat to Irish public policy in that particular sense of the term.’  

The judge also went on to say that the operation of the IBC Scheme could not exclude the possibility of exceptional and special cases.  He took the view that the Ezenwakas were given no effective opportunity to address their case by reason of their special and unique circumstances. 

In conclusion, Judge Hogan held that the decision of the immigration officials to refuse entry to the State should be quashed as it was based on an incorrect interpretation of the term ‘public policy’ in s 4 (3)(j).   He held the decision was invalid since it was premised on the application of a fixed policy which did not take account of the unique position of the Ezenwakas.   The Minister was directed to re-consider any fresh application made by the Ezenwakas for admission to the State.  He will be required to consider ‘whether any exceptions to the existing policy should be made for the Ezenwakas in light of the hardships they have suffered and the implications (if any) the making of any exceptions might have for the fair and consistent application of the scheme for other cases.’

OUR THOUGHTS:

It is somewhat refreshing to read Judge Hogan’s findings in Ezenwaka.  The case demonstrates the strict application of Ministerial Schemes such as the IBC 05 scheme which removes any opportunity for consideration and determination of special or unique cases.  The judge went above and beyond determining the extent to which the State would be held liable for mistakes of its officials and went on to scrutinise the personal situation of the applicants, the incorrect application of the phrase ‘public policy’ as well as the problems that attach to rigid inflexible policies.    While any fresh application ultimately rests in the hands of the Minister, at least the Ezenwakas have a second chance of admission to the State even though this chance arises three years after they were initially refused entry. 

For more the full judgement click HERE

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