Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11

HIGH COURT CHALLENGE TO MINISTER'S REFUSAL TO PROCESS AFGHAN REFUGEE’S APPLICATION FOR FAMILY REUNIFICATION

This morning, Mr Justice Peart of the High Court granted our client leave to bring Judicial Review proceedings against the Minister for refusing to process and determine his application for Family Reunification in respect of his wife and young daughter. Our client, who is an Afghan refugee, submitted the application for Family Reunification for his wife and daughter in November 2009, some two years ago. 

When we were first instructed on the case in August 2011, we made strong submissions to the Minister that our client had a statutory entitlement to be reunited with his wife and daughter, pursuant to Section 18 of the Refugee Act 1996 as amended. We also submitted that the delay in determining the application was in breach of our clients rights under Irish and EU law, and highlighted previous guidance from the High Court that a reasonable processing timeframe would be between six and twelve months.

To the distress of our client, the Family Reunification Section responded to confirm that his application had been “on hold” since September 2010 because the Minister was investigating his case for a possible revocation of his refugee status. Our client had never been notified of this proposal to revoke his refugee status, or the postponement of this family reunification application. Furthermore, he had no understanding as to what grounds the Minister was making this proposal.  We wrote numerous letters to the Minster Decisions Unit of the Department seeking a copy of the notification of a proposal to revoke and the grounds upon which this proposal was made, but neither were provided to us in breach of the Minister’s statutory obligation pursuant to Section 21 (3) of the Refugee Act 1996.  Meanwhile, the Family Reunification Section continued to refuse to process and determine the application.

 

Our client was initially very reluctant to resolve this matter by way of High Court proceedings, as he previously had to bring a High Court case to challenge the initial refusal of the Minister to grant him refugee status, and that process had taken approximately three years. We therefore submitted a Freedom of Information Application to the Minister in an attempt to find out what reasons the Minister had for refusing to process his family reunification application and proposing to revoke his refugee status. Unfortunately, nearly all the relevant documents were withheld on the basis that an investigation was being carried out.

Our client is understandably distraught by the on going delay of two years in determining his application for Family Reunification. His wife is now pregnant with their second child and they live in very difficult conditions as exiled refugees in Pakistan. The family had hoped and planned to have their child born in Ireland, in which case he or she would be an Irish citizen by birth.  Our client was therefore left with no option but to bring the matter to the High Court to seek an order compelling the Minister to proceed with his application to be reunited with his family.

Despite the fact that leave to bring Judicial Review proceedings has now been issued, we hope for our client’s sake that this matter can still be resolved in the short term. If the Minister provides an undertaking to consider and determine the family reunification application within the coming weeks, and provides our client with a proper proposal to revoke refugee status clearly stating the grounds upon which the proposal is made, there would be no need for the case to proceed to a substantive hearing before the High Court. In this way, lengthy further delays would be avoided for our clients, as would substantial legal costs.

8.11.11

Brophy Solicitors

INTEGRATION CONSIDERATIONS IN RESPECT OF RESIDENCY APPLICATIONS

The case of an Angolan teenager named Mauro Manuel has been receiving alot of media attention this week becuase the young boy has lost his fight to stay in the Netherland despite a plea by him to the Dutch parliament and countless support from the general public for his case.

Mauro has been living in the Dutch province of Limburg with a foster family since he arrived in the Netherlands as an unaccompanied asylum seeker at the age of ten in 2003. During this time, Mauro had  become very settled in the Netherlands.  He currently lives with foster parents who have recently had a son who Mauro counts as his little brother. Mauro even speaks fluent Dutch and with the added touch of the unmistakeable Limburg drawl. He is also studying a vocational course at college. It would seem by any reasonable standard that Mauro is extremely integrated in the local community and in Dutch society. 

The decision against Mauro was made by Dutch MPs who voted down two motions on Tuesday last which would have allowed him to stay in the country permanently. They are expected to vote next week on a compromise solution which would allow him to stay to hear whether or not an application for a temporary four-year visa as a student would be successful.

On the day when the decision was been made by parliament, Mauro had the support of 700 supporters and celebrities to submit a petition which was signed by more that 55,000 people. All of these people are in agreement that Mauro, an integrated member of the community should be given the right to remain in the place that he regards his home place. Mauro also enjoys support from groups such as the United Nations children’s agency, Unicef, who have stated that if Mauro was to be deported now, at a time when he is fully established and integrated in Dutch society, it would be in contravention of the UN Convention on Children’s Rights and would have serious repercussions for his development. 

The case of Mauro raises questions regarding the proper weight a State should give to the integration of an applicant within the community in respect of their application to remain in that State. If Mauro is deemed not sufficiently integrated into the life and Society of Netherlands to permit him to stay, then what is actually required for someone to be deemed to be permitted to remain in the community?  

The Dutch Immigration and Asylum Minister Gerd Leers ruled that Mauro had no right to stay in the Netherlands due to the fact that there were many others in Mauro’s situation and that therefore an exception could not be made.  In Ireland, the policies applied by the State to justify refusal of residence/visa applications, or to ground deportations include the obligation to protect the integrity of our immigration system, the State welfare system, control of borders, etc. Such policies are of course important. But where does the correct balance lie in circumstances such as Mauro’s case where an individual is fully established and integrated in the State?

National policies which attempt to control and manage immigration are legitimate and necessary, but must be applied relative to the individual facts of the each case. Blanket policies applied systematically can lead to unreasonable, unfair and perhaps unlawful decisions.

Supreme Court Judgment on the “Ejerwena” case, 28th October 2011

On the 28^th October last, the Supreme Court delivered judgment in a case concerning a challenge against the detention of a non-national for Immigration offences.

The appeal to the Supreme Court by Gerard Ejerwena involved an enquiry into his detention by the State on 1^st August 2011 in Dundalk Gardai station. It was argued before the High Court that his detention was unlawful under article 40.4.2 of the Constitution.  Therefore,  he was entitled to commence an enquiry, and the Court was required to hold an immediate hearing on a specific date and time known to investigate as to the lawfulness or not of his detention, and if not, to grant a “habeas corpus” order releasing him from unlawful detention. 

The facts of the case were as follows; the appellant was travelling on a bus which was headed for the Northern border which was stooped by he Gardai who then demanded that Mr Ejerwena produce proof of identification which he could not do. At the station he was asked to fill out a landing form, on which he stated that he was from Sierre Leone, however the Gardai did not accept this and ordered him to fill out another. On the second card he claimed to be Nigerian and due to suspicion of his identity, members of the Gardai deposed that the appellant was refused to leave land for not having a valid passport, a valid visa and also because he would try and travel to Northern Ireland where he would not have permission. Subsequently Mr Ejerwena was detained at Cloverhill Prison.

Mr Ejerwena appealed to the Supreme Court to the effect that the detention order in question was in fact defective. Firstly it was argued that the three main reasons that the Gardai stated for holding the appellant should have appeared on the face of the warrant. He also submitted that the document also did not show that the immigration officer had suspected with reasonable cause that the appellant had unlawfully been in the State for a continuous period less than three months. Furthermore various case law was mentioned by counsel for the appellant to the effect that in this case the Gardai had failed to demonstrate sufficient efforts to show (on the face of the document) the exact reasons for the refusal to leave land, so that in the event of an inevitable “habeas corpus” motion the court could efficiently and fairly examine the validity of the detention.

For these reasons the appellant was successful and Mr Ejerwena was released on 26^th August 2011. 

3^rd November 2011

Brophy Solicitors

GUARDIANSHIP

We have recently received a number of queries in relation to legal guardianship from persons who wish to apply to the Minister for permission to reside on the basis of their parental role with an Irish citizen child.  Some of the queries relate to unmarried fathers who are no longer in a relationship with the mother of their child, and are in disagreement regarding custody and access to their child. Other cases involve persons who are not the natural parent of the child, but are married to the child’s parent, and are in every other way like a parent to the child. An understanding of the law of guardianship is required to establish what residency rights such parents acquire through their relationship to the Irish citizen child. The following is a short summary of this subject;

Guardianship is a collection of rights and duties which a parent has in respect of their child. The guardian has a duty to maintain and properly care for their child and to make decisions in areas such as the child’s religion, school, adoption, medical treatment. Only natural parents can be guardians of their children if the parents continue to be alive.

When the parents of the child are not married to one another, only the mother of the child is automatically a guardian. The unmarried father is not automatically a legal guardian of his child, and must apply to the local district court to be appointed a joint guardian of his child. An unmarried father can become a guardian by agreement with the mother where the father and mother can fill up and sign a statutory declaration for joint guardianship (S.I No 5 of 1998). The mother’s views are not determinative by the court in making the decision. The fact that the mother may not consent does not mean that the court will refuse the order for guardianship sought by the father. Any decision by the court will be made in the best interests of the child.

If the parents of the child marry each other following the birth of their child, then the father automatically becomes a joint guardian with the mother as long as the child has not be adopted and the mother was not married 10 months before the birth of the child.

If the mother marries a man who is not the father of her child, there is no legal relationship between her husband and her child. If the birth father is a joint guardian he remains a joint guardian of his child. If the mother and her husband wish to adopt the child and the father is a joint guardian, his consent to the adoption is required. If a father is not a joint guardian he has a right to be consulted about the adoption. If the child is adopted the father loses all legal rights in relation to the child.

When a woman has a child outside marriage and goes on to marry a man who is not the father of her child there may be a desire to establish a legal link between her husband and child. This may only be done in Ireland by having the child adopted by the married couple. This means that the biological mother becomes the adoptive mother of her own child and the step father becomes the adoptive father with all he rights and responsibilities to the child as if the child had been born into the marriage. It means that the biological father will have no further rights or responsibilities to the child and will not have the possibility of getting rights in the future.

The adoption creates a legal family unit with constitutional protection as if the child had been born into that family unit. It gives full parental rights and responsibilities to the adoptive father and this is especially important in the event of the death of the mother.

Parents who are guardians but especially mothers who are sole guardians, should make a will appointing a guardian to act on their behalf in the event if their death before the child is 18. This is called a testamentary guardianship. The surviving guardian if there is one then acts jointly with the testamentary guardian. If a parent dies without appointing a guardian in a will, it is possible for someone with an interest in the child to apply to the court to be appointed a guardian of the child.

Changes to Reference Numbering under a new INIS Information Technology System

A new Information Technology system is being introduced in the Irish Naturalisation and Immigration Service (INIS) including the Office of the Refugee Applications Commissioner (ORAC), The Appeals Tribunal (RAT0 and the Reception and Integration Agency (RIA).

The new system will allow INIS to be more efficient in associating queries with individual applications and in directing queries to the relevant processing areas. This will simplify the process of checking the status of cases and lead to improvements in the way that INIS handles such queries. It will enable the most up to date information to be available to case workers and decision makers in a more structured way which will improve efficiency and effectiveness. It will involve the replacement of the existing file numbering system with a new single INIS approach to case numbering. The new numbers will be issued to both existing and new applicants.

The new system includes two types of identity or reference number. These are a person identity number and a separate application reference number.  The person identity number will be in the format of a number followed by a year –the year based on the first application lodged to INIS. The application reference number will include a number, information regarding each application type, and the year the application was made.

Existing applicants and their cases will be assigned both a new person identity number and a new application reference number. Applicants or their representatives should quote the new numbers in any correspondence with INIS and associated agencies.

Letters from INIS will continue to include existing file reference numbers in addition to the new reference numbers in order to avoid confusion and to allow for a smooth transition to the new system. The existing file reference numbers will be included as a cross reference for older cases, these will gradually cease to be used over a period of time.

New applicants will be allocated a person identity number and/or an application reference number. They will not be allocated an old number.

The new reference number will not to visa applications where the existing reference numbering system for visa applications will not be changed.

Brophy Solicitors

27.10.11

Special Extension of Permission to Remain for Timed – Out Students from October 1st 2011.

The Minister for Justice has recognised that the current economic climate posed challenges for both Irish citizens who sought employment and for students who wished to pursue a work permit or green card. According to recent guidelines on the INIS website, the Department of Justice will now allow certain categories of ‘timed out’ students to register for a further three months in order to address their immigration status. This concession will apply to non – EEA students whose permission to remain in Ireland expires after October 1^st 2011 where the students were legally resident in Ireland for seven years on January 1^st, 2011 and who have availed of the six month extension on their residence and who had kept their permission up to date. It also applies to students who were resident in Ireland for seven years on January 1^st, 2011 and who have availed of the Irish Third Level Graduate Scheme.

Students shall be permitted to work during the three month concession period as they would be on their academic holidays. However, they will not be permitted to enrol on any further educational course. The ultimate purpose of the extension is to allow these students to address their immigration status or to make arrangements to leave the state. Eligible students can apply for an employment permit or green card during this time without been required to return to their country of origin.

At the end of the three month period, the student will either be classified as a worker with an employment permit (Stamp 1) or, if they fail to secure an employment permit in that time, their permission to be in the state will expire.

This special three month concession will not apply to students who do not meet the above criteria. It will also fail to apply to Stamp 1A holders.

Students who have not kept their permission up to date will only receive the balance of their six month timed out extension. The concession will not apply to students whose permission expires from January 1^st, 2012.

A summary of the Student Regime

The Department of Justice’s current regime for non- EEA students commenced in January 2011. This regime allowed language and non – degree programme students permission to reside in the State for a maximum period for three years and degree programme students were permitted to reside in the State for a maximum period of seven years. A language and non – degree programme student could progress to a degree programme and extend their permitted period of residence, however, the maximum period of residence permitted for any student is seven years.

Some interim arrangements were put in place for non – EEA students who were residing in Ireland before January 1^st, 2011 and who had exceeded the permitted duration of stay as a student because of the commencement of the new rules.

Language and non – degree programme students who had completed their three years and whose residence permission expired after January were permitted to register if they were commencing the second year of a non- language programme. However, the overall maximum limit of seven years residence as a student applies.

Students whose immigration permission expired between January and the 30^th September, 2011 were entitled to six month extension to their permission, where they had exceeded the new time limits. Students could work during the six month concession period on the same terms as during the academic holidays. They could also apply for an employment permit or green card during this time without having to first return to their country of origin.

Degree programme students who had completed the seven years of study and whose residence permission expired after January were permitted to register only if they were commencing their second year of a degree programme. They will be permitted to complete the course.

When the new rules came into force, it emerged that some courses in vocational and business areas did not meet the criteria for degree programme courses here. However, they were validated by overseas bodies. In order to avoid disadvantaging students who had enrolled in these courses in good faith, a temporary arrangement was put in place which would allow these students who had exceeded the three year limit which applied to language and non- degree programmes and whose registration was due to expire to enrol for a course of this type for one year. However, the student was still bound to avoid exceeding the overall seven year time limit. This concession ended on July 1^st, 2011.

Students who could not avail of these options were required to make arrangements to leave the state.

Irish Third Level Graduate Scheme

The Irish Third Level Graduate Scheme allows legally resident third level graduates to remain in Ireland for the purposes of seeking employment and applying for a green card or work permit. A six month permission is available for graduates with a qualification at NFQ level 7 while a twelve month permission is available to graduates with a qualification at NFQ level 8 or 9. This scheme allows legally resident non – EEA third level graduates to remain in Ireland for the purpose of seeking employment and applying for a green card or employment permit. The student may work full time during this period of permission.

Periodic Report Outcome 19.10.11

Ireland’s Universal Periodic Review took place in Geneva recently where Minister for Justice, Equality and Defence, Mr. Alan Shatter defended Ireland’s human rights record. Delegations of other United Nations countries put questions to the minister and made recommendations on how Ireland could improve shortcomings in the human rights area.

Of particular interest to us, is that the government have expressed their commitment to reducing the time taken to process applications for citizenship to an average of six months. It was also commented that the implementation of citizenship ceremonies demonstrated a positive attribute to welcoming new citizens into Ireland.

The United Nations outcome report on Ireland was adopted on Monday 10^th of October by the government and included 126 recommendations. Some of the noteworthy recommendations include that all asylum seekers in Ireland should be able to effectively accede to the process of determination of their refugee condition and that decisions on the necessity for international protection be reviewed and be subject to independent judicial supervision.

It was also suggested that practical and legal measures are adopted  to curb racial discrimination and discrimination against migrants and to look at the appeal by UNESCO (United Nations Educational, Scientific and Cultural Organisation) to ratify the 1960 Convention to counter discrimination in the area of education.

It was also interesting to note the suggestion to extend the remit of the Ombudsman to children in prison and asylum seeking children.

It is hoped that these recommendations will be adopted and allow Ireland to improve the current shortcomings in the area.



The Naturalisation Process, Ireland and the United Kingdom compared

We have recently made submissions to the Minister on behalf of a client who is waiting a determination of his application for Naturalization for a period of over four years and four months. It has been indicated that to us that our client’s application for Naturalization is being considered “in the normal way” with a view to be establishing that he has met the statutory requirements for Naturalization.

We cannot accept this response as reasonable or adequate in the circumstances of our client’s case.   He does not present as a person who would potentially be ineligible for Naturalization pursuant to the Statutory requirements of the Irish Nationality and Citizenship Acts 1956 to 2004. He has lawfully resided in the State for over ten years. He is married to and EU national. He is a highly qualified person, and has always been in employment in this State. He has never come to the adverse attention to the Gardai in the State or any other country.

We recently wrote to the Minister to request to know why is this application taking over twice as long to process as the average application? Why is he being discriminated against compared to the average applicant? What has the Department been doing while processing his application over the course of four years and four months? When can our client expect to complete the processing of this application? We also indicated that we have submitted many applications for  Naturalization whereby the applicant has been found not to meet the criteria of the Citizenship Acts and these applications have been determined in periods of time far less than this client.

It was indicated to us in a responding correspondence from the Citizenship Section that should our client issue court proceedings in an attempt to compel the Minister to determine the application, that he would strictly be pursued for costs. This assertion was based on a number of judgments from the High Court from 2009 and 2010 where it was held that because Naturalization is a privilege, an applicant can not compel the Minister to determine the application  (Nawaz versus Minister for Justice, 29^th July 2009, Bepo v versus Minister for Justice 18^th June 2009, Tabi versus Minister for Justice  16^th April 2010 and Jiad versus Minister for Justice 19^th May 2010  ).

Thus, there is nothing an applicant such as our client can do put continue to wait without any understanding regarding why his application is being treated so unfavourably.

It is interesting to compare the UK Naturalization process.

Currently, the granting of a Certificate of Naturalisation is at the discretion of the Home Office. Applicants are required to be aged 18 years or over, of sound mind, intend to continue living in the United Kingdom or to maintain close links with the United Kingdom, be able to communicate in English, Welsh or Scottish Gaelic to an acceptable degree, be of good character, meet certain residential requirements of five years or three years – with conditions attached to each. Applicants are also required

to have sufficient knowledge of life in the United Kingdom (with the exception of those who are over 65 years of age or are suffering from a long term mental condition preventing them from being tested on their knowledge ).

Applicants are entitled to have an acknowledgement receipt of their application within a number of weeks of submitting the application, and Applicants can accept to receive a determination of the application within a six month period. Applicants may also be required to attend an interview.

The Home Office has recently introduced strict new requirements which potential applicants will be required to meet in order to meet the criteria necessary to be approved. Applicants will now be required to have knowledge of British history in order to pass the citizenship test. Prime Minister David Cameron has noted the fact that the current test examines knowledge about the roles and powers of the main institutions of Europe and the benefits system in the United Kingdom. He is hopeful that the new test will be centred on British history and culture. It is thought that the new rule requiring knowledge of British history may prove to be a significantly more difficult obstacle for those who seek to be accepted as citizens of the United Kingdom in the future.

There is no similar requirement for knowledge of Irish history for Naturalisation in Ireland. Applications are decided upon by the Minister for Justice and Equality, who enjoys absolute discretion. Many of the general requirements are similar to the United Kingdom such as the requirement to be aged 18 or older and of good character. Applicant must intend to reside in the state after naturalisation, make a declaration of fidelity to the nation and loyalty to the state, to undertake to observe the laws of the state and respect democratic values. One is also expected to be supporting themselves and their dependents while living in the state when they make their application.

The great difficulty with the Irish Naturalisation process is that it is the complete lack of  transparency. This allows for blatant disregard for fair procedures like the example of the case above.

IMMIGRATION DEBATE AT TCD CAUSES CONTROVERSY

A debate entitled “This house believes that Immigration in Ireland has gone too far,” due to be held on 20^th October by Trinity College’s Philosophical Society has been cancelled following a protest from far-left activists which severely threatened the safety of students.

The debate was to be hosted by British National Party MEP Nick Griffin who consequently decided to write a letter of complaint to a number of honorary patrons of the prestigious society such as Sir Bob Geldolf, former Taoiseach Bertie Ahern and Archbishop Desmond Tutu. Mr Griffin has branded the incident as “an attack on free speech.”

The seriousness and the enormous media coverage on the matter has highlighted that immigration remains a controversial subject in Ireland.  

Brophy Solicitors

20.10.11

PROPOSAL TO IMPROVE SOCIAL INCLUSION OF IMMIGRANTS IN IRELAND

In a bid to improve the current Irish Immigration process, new legislation has been proposed by the Integration Centre, which is supported by Atlantic Philanthropies Ireland Ltd, the One Foundation and the Citizens Information Board. The report was created with the aim of tackling racist crime and improving social inclusion of immigrants in Ireland.

The report lists 36 roadblocks to integration in Ireland on matters such as education, politics and healthcare, furthermore it suggests 78 solutions, all of which (bar introduction of intercultural studies into the school curriculum) should cost the state just under €10 million. In the report the Integration Centre also mentions how Irish immigrants are more likely to be unemployed, earn less and are more at risk of poverty.  

Amongst 10 top goals to be fulfilled by October 2012 is the banning of terms such as “naturalisation” and “bogus asylum seeker,” as well as improvements to current Junior and Leaving Cert subjects, which will assist with integration and implementing of intercultural studies. One of the fundamental aims of the report is to promote integration at a young age and so it seems that many changes may be made to our current education system in a bid to tackle the issue early- on.

All in all, if the legislation is implemented this will be a huge development in this sector of our society and a welcome improvement by immigrants who successfully obtain citizenship in Ireland. 

Constitutional challenge to establish right of Irish Citizens to the company of dependant Non EEA parents

We have previously blogged about this case when it was first heard before Mr Justice Hogan in July 2011.Over the last two days, the substantive hearing of the case was heard by Mr Justice Cooke. Submissions are now complete, and we must now await the High Court's decision.

The case concerned an Irish citizen couple who have applied for permission to remain in the State for their non EEA elderly parents, who we say are dependant upon them. 

The legal argument was focused on whether Article 41 of the Constitution, which guarantees the protection of the family as the "natural primary and fundamental unit group of society" , extends to include an adult Irish citizen and their elderly dependant parents. We argued that it does, and where dependency exists between the adult citizen and their parents, Article 41 protects the Irish citizen's right to the company of their parents, in the absence of reasonable and legitimate countervailing grounds which the State may raise. The State's position was that Article 41 offered no protection to our clients whether or not dependency existed, because our clients did not constitute a family unit within the meaning of Article 41. In other words, they argued that as an adult married citizen, one can no longer regard one's parents to be part of the family unit as envisaged by Article 41. A second argument was made that the dependency link in our clients' case was not sufficient to amount to dependency in legal terms.

There is no authority in Irish law to date to establish whether a family comprising of two married couples (i.e. the married Irish citizen and the married non EEA dependant parents) derive protection from Article 41, and if so, whether such protection would require the State to grant the dependant parents permission to reside in the State. Therefore, this case was argued on novel Constitutional grounds, and if successful, could establish a very significant new Constitutional right.

We eagerly await Mr Justice Cooke's judgement, and will post a further update at that time.

Brophy Solicitors

19.10.11

ONE TO WATCH! PRELIMINARY REFERENCE ON THE RESIDENCE RIGHTS OF PARENTS

The Upper Tribunal in the UK made a preliminary reference last week to the Court of Justice of the European Union on the rights of residence of parents with children over 21 years who they are caring for. 

In Alarape and anr (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 00413(IAC) (AIRE Centre intervening)  the Tribunal held that the term "child" in Article 12 of Regulation (EEC No.1612/68  (now Article 10 Regulation (EU) No. 492/2011) which guarantees a right of access to education - should be interpreted to include "stepchild".

The Tribunal also referred a series of questions to the Court of Justice of the European Union, including:

1.     For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?  

2.     If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

3.     In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

4.     In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

5.     Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence) and being issued with a residence card under Article 19 of the same Directive?

While it is likely to be some time before the Court provides guidance on the above questions, such clarification will be helpful in ascertaining to what extent applicants can derive a right of residence arising from their relationship with their children, irrespective of the fact that they are no longer minor children. Our current experience is that the Department is reluctant to take into account a relationship between a parent and an adult child, even where emotional ties and dependencies are evidenced. A parent, relying on EU Treaty Rights, will ordinarily need to advance independent grounds before the Department to be successful in retaining their right to reside.

We will keep you updated on the progress of this reference and look forward to hearing any comments you might have.

Brophy Solicitors

18.10.11

PROPOSED REFERENDUM ON CHILDRENS' RIGHTS PLANNED FOR NEW YEAR

The United Nations Convention on the Rights of the Child requires that states act in the best interests of the child. Ireland is a signatory to the Convention and ratified it since 1992. States that ratify it are bound to it by international law. In 2006, the United Nations Committee on the Rights of the Child in Geneva expressed concern that the wording of the Irish Constitution does not allow the state to intervene in cases of abuse, other than in very exceptional cases. Therefore, the Irish Government undertook to amend the Constitution to make a more explicit commitment to children’s rights.

In his recent address to other UN member states in Geneva as part of Ireland’s Universal Periodic Review, Minister Alan Shatter said that the referendum on children’s rights will be held early in the new year. The announcement was welcomed by many groups such as Barnardos, CARI, the Children’s Rights Alliance, The Dublin Rape Crisis Centre, ISPCC, One in Four and the Rape Crisis Network of Ireland. The Irish Council for Civil Liberties said that a more definitive date was needed.

The proposed wording for a referendum on children says the following:

‘In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be first and paramount consideration.’

The proposed amendment will bring Irish law in line with the current UK position, as confirmed by the recent Court of Human Rights judgement in the case of ZH (Tanzania) (concerning the removal of a non-British parent of a UK citizen child). The Court of Human Rights 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. In the words of Lady Hale:

‘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.”

The new Constitutional provision may have quiet an impact in the immigration field and the exact wording of the proposal amendment is of much interest to us.  For example, the inclusion of the word ‘upbringing’ gives scope for the argument that children have rights to be brought up in the country of their nationality. This would be a novel right under Irish law, given the current position as set down by the Supreme Court in the case of L and O case  (Lobe v. Minister for Justice, Equality and Law Reform [2003] IESC 3 (23 January 2003). In that case the Supreme Court held that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. 

The proposed wording of the new Constitutional provision gives room to argue that the deportation of an Irish citizen child could be deemed unconstitutional if it was not in the best interests of the child’s upbringing. Could it not be argued that in most cases a child would be better off to be brought up in a developed country like Ireland, than many developing countries where standard of life may be of a lesser quality? Could it be argued that the rights of the child extend not only to parents, but other immediate family members, such as siblings?

Certainly, some discussion is necessary on how a balance may be struck between achieving the protection of the rights of children and permitting the State to act within its required duty to protect the Immigration and welfare systems. We believe that the upcoming referendum is a good opportunity to assess these sometimes conflicting rights of the State and individuals. It is an opportunity to create and improve current policy in respect of the rights of children, and their position in society.  We welcome the implementation of children’s rights into the Constitution and the State’s commitment to ensuring that children are protected and a statement by the people of Ireland about the type of society in which we would like to live.

Brophy Solicitors

14.10.11

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

UNIVERSAL PERIODIC REVIEW

This October saw Ireland examined for the first time by other United Nations (UN) countries on our human rights record. The process is called Universal Periodic Review.  It is a process where the human rights record of the United Nations 192 member states are reviewed and assessed every four years. It is an important part of reminding states of their responsibility to fully respect and implement all human rights and fundamental freedoms. As noted by Ban Ki – moon, UN secretary General, the Universal Periodic Review ‘has great potential to promote and protect human rights in the darkest corners of the world.’ 

Minister Alan Shatter personally attended the United Nations Geneva Head Quarters on the 6^th October 2011 to answer questions on Ireland’s human rights record as Ireland submitted to its first ever ‘Universal Periodic Review’. In his opening address, Minister Shatter made specific references to both the positives and negatives of Ireland’s human rights record. Of particular interest to us was his specific reference to the unacceptable delays in the Naturalization process. He confirmed that he was taking steps to rectify this problem, and aimed in due course to have all applications dealt with within a six month period. He acknowledged criticism for the lack of appeal process to decisions of Naturalization applications, but confirmed that he reviewed all decisions and therefore there was no higher authority to determine appeals.  He cited the new Citizenship ceremonies as a positive step towards welcoming and celebrating newly declared citizens. 

Questions were then put to the Minister from each represented member state focusing on human rights issues of concern in Ireland today including children’s rights, access to abortion and the ABC judgment, prison violence, overcrowding and sanitation and traveller’s rights. The review marked an opportunity for people in Ireland to highlight important human rights issues which face the country, and to encourage Ireland to promise to address these issues in front of an audience of their international peers.

The Minister made some positive statements such as confirming that a Referendum on children’s rights would be held early in 2012 in order to bring Ireland into line with the UN Convention on the Rights of the Child. He acknowledged the urgent need to modernise our mental capacity legislation in order to protect those who are vulnerable in society. He also outlined a commitment to ratify the optional protocol to the Covenant on Economic, Social and Cultural Rights which would allow individuals to complain about alleged violations of these rights at an international level.

However, it has been noted that the Minister was short on detail in response to questions on other issues that are related to human rights protection in Ireland. For instance, the Minister noted the government are preparing legislation to enable it to ratify the Optional Protocol under the UN Convention against Torture. This is an important development and would require the establishment of a national body to monitor places of detention. However, the Minister failed to go into detail on the substance of that legislation or to give any timeline for its implementation. Irish Council for Civil Liberties (ICCL) Director Mark Kelly has commented that while Mr. Shatter appears to be sincere in his intentions, concrete action will be required to meet the promises made by Mr. Shatter at the review.

On the 11^th October, the UN Human Rights Council adopted its ‘Outcome Report’ on Ireland. This contained a summary of what was discussed at the hearing and a list of recommendations for Ireland to improve the human rights situation. This will be formally adopted at a hearing in March 2012, where Ireland, The United Nations Human Rights Council, and NGOs will be able to discuss the report and the obligations which Ireland are required to meet.  Once this report is formally adopted, it will form the basis on which Ireland’s human rights performance will be measured for the coming 4 years.

We believe that the Universal Periodic Review (UPR) is an essential part of improving the human rights situation in all countries and to address human rights violations whenever they occur. It has allowed for civil society to contribute to the examination of Ireland by highlighting the human rights issues of concern which are facing Ireland today and providing evidence of this to the United Nations about how they are affecting people on the ground.

Brophy Solicitors

13.10.11

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