Happy New Year from the Immigration Department!

This is our last day in the office until the New Year and we would like to thank all of our clients for their services, kind comments and interest in our blog!

The Immigration Law Department of Brophy Solicitors has had a busy and eventful 2011! We are pleased at how many of our difficult and complex immigration cases were resolved this year. Of course the ground breaking ECJ decision of the year, Ruiz Zambrano led to a major overhaul of policies concerning the rights of Irish citizen children and their family members. We anticipate further developments both on a domestic level and in the EU arising from this judgement. We continue to work closely with our clients to whom this decision applies and hope that 2012 will see the resolution of outstanding cases.

We saw a huge growth in work involving EEA family visas and Irish Spouse visa appeals and applications as well as more complex dependant family member visa applications and appeals.  Citizenship and Family Reunification applications continue to pose huge delays and backlogs for clients and we hope that 2012 will bring policies that will make way for a more coherent and efficient system.  We have a number of cases that we have recently issued proceedings on and await the outcome in 2012 –as always we shall endeavour to keep our clients and readers informed of developments in our casework!

We have really enjoyed working on our blog this year and welcome all of our readers’ comments and suggestions! We are very pleased with how the Irish Immigration Blog has developed and we will continue to update the blog and publish interesting articles in 2012! So thank you to all of our followers!  Next year, we look forward to the launch of the new and expanded Brophy Solicitors Website which will feature news articles, office developments, galleries, guest writer articles, events and lots of information for all of our clients so watch this space!

None of our work on the blog, website, twitter and Facebook would be possible without our legal executive for Immigration, Ruth Jones, our Immigration secretary, Johnathan McDonagh, and  our immigration interns Clara Enright, and Barrie Scott.  We really appreciate all of your hard work and research over the last few months and look forward to working with you in the New Year!

Again, we wish you and your families a happy holiday and a wonderful New Year!

Sarah, Karen, Irene and Rebecca. 

Judgment expected this afternoon in Pakistani woman's claim to remain in Ireland

Today we await the judgment of Mr Justice Gerard Hogan on a case concerning a Pakistani woman, Rizwana Aslam. The woman in this case is eight months pregnant and was unable to attend court yesterday due to severe abdominal pains. In court her counsel argued that she should be allowed leave to remain in the state with her husband who has refugee status in the State.

Counsel for the Minister argues inconsistencies in their stories concerning their marriage, which Mr Fakkhr Ud Din, Ms Aslam’s husband, claims was conducted by proxy. He also announced their intention to marry in a civil ceremony next month.

It is claimed on behalf of Ms Aslam that she would suffer religious persecution should she be returned to Pakistan. This is a claim counsel for the Minister calls irrelevant in his argument that she should be returned to the UK where she first sought asylum.

Judgment is expected at 2pm. 

UK and Ireland commit to increased immigration co-operation

Wednesday December 20th saw the UK and Ireland join forces in recommitting to more stringent immigration policies and controls. It aims to protect what is known as the Common Travel Area, which was established in the 1920's with a view to free movement for nationals between the countries. The Area is comprised of the UK, Ireland, the Channel Islands and the Isle of Man.

Minister Shatter signed a statement with UK Minister for Immigration Damien Green along with a Memorandum of Understanding with an intention to work towards joint standards for entry. This is with a view to eventually enhance electronic border systems to identify those with no right to enter the Common Travel Area before they arrive at the border. A further data-exchange initiative will be launched which will involve the exchange of information such as finger print biometrics and biographical details, particularly from 'high-risk' countries, as part of the visa issuing process. The Irish Naturalisation and Immigration Service (INIS) said the aim of this is to 

'help prevent abuses of the CTA arrangement while protecting its long-established benefits of trade and tourism. The move could create considerable savings for both countries on removing foreign nationals with no right to stay'.

Previous close co-operation between the countries has proved effective in various cases. Minister Shatter was hopeful of the plan's potential in relation to tourism and economic benefits. He further stated

'Today's agreement provides a platform for greater cooperation on immigration matters, including joint action to protect the CTA from abuse by preventing potential immigration offenders from travelling to Ireland and the UK'. 

High Court Judgement in Naturalization Delay Case

Case Summary; Dana Salman v Minister for Justice and Equality, Judgement of Mr. Justice Kearns of 16.12.2011

This case saw the applicant compelling the Minister to administer a decision in his application for naturalisation. The applicant is a refugee originally from Iran. Application for naturalisation was made in early 2008 – thus a delay of three years and nine months was at issue.

This delay caused severe inconvenience to the applicant; he found he was frequently detained at immigration control when he attempted to travel outside the state and for that reason he stopped travelling. The eve prior to the substantive hearing of the proceedings the applicant was issued with a certificate of naturalisation, therefore the sole matter that was to be determined between the parties was the cost of the proceedings.

It was argued by the applicant that the respondent’s statutory duty to consider the application should not be confused with his discretion as to the outcome of the application. Citing Article 34 of the UN Convention on the Status of Refugees and Stateless Persons, 1951 the applicant accepts that there is no requirement to grant citizenship to refugees but there is an obligation to expedite the process and that this requirement has been ignored in the instant case.

Further the applicant argued that even though the Minister is given no time period by law in which to make a decision, there is nevertheless a duty to make a decision within a reasonable time. It is argued that the above delay is not a reasonable one.

Having taken into account article 9.1.2 of the Constitution, Section 15 of the Irish Nationality and Citizenship Act 1986, the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the Protocol of 1967 Article 34 the court stated that

‘The respondent in the instant case was not granted an unfettered discretion to issue a decision on the applicant’s application at his leisure, or not to issue a decision at all. He was under a duty to exercise his statutory powers in a fair and reasonable manner.’

The court cited Cooke J in the 2010 case of Nearing of 2010;

‘Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case’. 

Having considered this in light of the present circumstances Kearns J found that in this case there was no evidence before the Court of any system in place for dealing with applications for certificates of naturalisation. In particular, the Minister did not indicated specific reasons for delay and refusing to explain the extended period of delay past the average time put forward by the department the court held that there was no evidence that there was in place a fair and rational system for the processing of applications. The court held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded.

Such a decision inspires hope for the many awaiting decisions from the Minister in this regard and  is welcomed as a step forward in decreasing the waiting times. 

Brophy Solicitors

20.12.11

The Minister's reliance on blanket policies to refuse visa/residence applications

We are working on a number of cases where the Visa Office has relied on  a “General Policy” to refuse our clients' family members a right of entry and residence to the State. The policy has been described to one of our clients as follows;

“It is not the general policy of the Department of Justice and Law Reform to allow extended family members to automatically migrate on a long term basis to Ireland”

Thus, a blanket policy appears to be in place to the effect that a very large number of potential applicants could be refused.  However, this policy was not made available to the public domain.

We raise the questions of who constitutes an extended family member as per this general policy? Why is applied in some cases and not others? In respect of whom can an exception be made?

It appears to us to be very unsatisfactory that the Minister is relying on policies which are not made public, to make decision effecting fundamental rights in respect of family life.

We draw attention to the obligation on the Minister to make available to the public all policies he will seek to rely on. Under Section 16(1) of the Freedom of Information Act 1997 the Minister is required to prepare and publish ‘rules, procedures, practices, guidelines and interpretations used by that body … for the purposes of decisions’ and section 16(5) requires them to be made available to the public

It has been emphasised by both Irish and UK courts, the importance of making State policies available to the applicants. Furthermore, the superior courts have refused to uphold a decision whereby reliance was made on a blanket policy without full reliance on the applicant’s individual circumstances. Of useful reference are Ezenwaka and Anon v MJELR [2011] and of the UK Superior Courts, Quila and Bibi v Secretary of State for the Home Department [2011].

We are concerned at the appearance of such a blanket policy and await the Minister’s response to our query.

Brophy Solicitors.

Hungary - potentially the next member state to be found unfit to return asylum seekers to?

Last week we prepared for an urgent injunction application to prevent a Somali client’s deportation to Hungary. Instead, we obtained a last minute undertaking from the Department of Justice that the  deportation would not be carried out at least until mid January. 

The case is somewhat unusual as it is not yet in the public domain that asylum seekers and refugees returned/deported to Hungary  risk destitution. The case also highlights the potential for a second waive of cases similiar to the "Greek Transfer" cases , but this time in respect of Hungary . 

Our client is a Somali national against whom a deportation order has recently been issued on the basis that he had previously been granted refugee status in Hungary. However, on obtaining status in Hungary, out client received no accommodation or social assistance in any form. Unable to speak Hungarian, he found no possibility of gaining employment. This, coupled with no access to welfare support led him to become destitute and homeless. He had no means to pay for accommodation, food or other basic subsistence requirements. He, along with other Somali nationals, slept rough on the streets, and relied on local mosques in Budapest to supply food and blankets. Due to this lifestyle and particularly in such a climate as Hungary, he became very ill. The situation was so dire that he felt forced to return to Somalia at the end of 2006 and was able to do so due to his family’s assistance.

As the situation in Somalia worsened in 2007 and 2008, and our client and his family were subjected to many attacks by the local militia, he was tortured and most of his immediate family were murdered.  He thus fled Somalia again, and entered Ireland to claim asylum.  Three years later, he now faces deportation back to Hungary. We are currently urgently seeking an injunction to stay any deportation which may occur. We do so appealing to protection grounds pursuant to the Refugee Act 1996, the UN Convention Against Torture, the European Convention of Human Rights and humanitarian grounds of the Immigration Act 1999.

In particular, we are relying on a 2012 UNHCR Report called “Refugee Homelessness in Hungary” details the dire situation ongoing for Somali refugees in Hungary. This report corroborates fully the fear of our client that he would again be rendered destitute if returned to Hungary. Of particular relevance to our particular client, the report outlines those refugees who have continued onto other EU Member States and who were forcibly returned as those at greatest risk. Furthermore, the report identifies Somali nationals as the group at most risk of homelessness in Hungary.

“Caught in a vicious circle of hopelessness and without any examples of successful integration among Somali refugees in Hungary, most research respondents opt for onward movement to other European counties. Inadvertedly punished with homlessness and hunger as a result of exercising freedom of movement and without access to an adequate level of community based-support services in Budapest, a number declared their intention to engage in repeat onward movement…” (Ch.3 Para.2)

We consider the above report to be of substantial weight as it has recently been relied upon in Austrian Courts to prohibit the state from returning refugees and asylum seekers alike to Hungary.  

The denial of any welfare service to asylum seekers, thus causing a situation of destitution was found to amount to a breach of Article 3 of the ECHR in the UK decision of R (Limbuela) v Home Secretary Of State for the Home Department [2006].

Similarly in M.S.S. V Belgium and Greece [2011] the Grand Chamber of the European Court of Human Rights determined that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, thus any transfer to Greece would effect a breach of the Applicant’s rights under Article 3. This judgement was ground breaking, in that it was the first time a Member State of the EU has been found to be actively operating an asylum system that amounts is effectively  “Inhumane and degrading treatment” for asylum seekers. The consequence of the M.S.S. case was a large amount of injunctions being granted by various courts with the Member States to prohibit “Greek transfers”.

The situation concerning refugees in Hungary, particularly returning Somalis, is such to mirror the situation decided upon in Greece. 

Brophy Solicitors

19.12.11

New Stamp Introduced

On the 1st December last, The Department of Justice and Equality issued a new stamp to be introduced to the Irish Immigration system, Stamp 0. This is the newest edition to Stamps 1, 1A, 2, 3 and 4.

The new stamp concerns temporary and limited permission to reside in Ireland and is available to new cases only. Essentially it has come about through a re-structuring of the stamp system and effects only an administrative change. It is intended for specific purposes only such as visiting academics and purports no pathway to permanent residence in Ireland. If effects to extend beyond the ordinary 90 day tourist visa.

The person must be self-sufficient of fully supported by a sponsor and will receive no State benefits whatsoever for their duration in the State. It may be necessary under certain circumstances for them to hold their own private medical insurance. No specific or seperate procedure of application is to be used, other than the normal application process.

Brophy Solicitors

Standing Up For Migrants Rights

A survey by the One Foundation, reported in the Irish Times yesterday, has found that TDs fear that showing support for migrants may damage their electoral chances. Almost two thirds of those TDs surveyed said that they had encountered racist attitudes while canvassing.

This survey follows the recent resignation of Darren Scully, Major of Naas and Fine Gael Councillor, who stated in two separate radio interviews that in the future, he would refuse to represent African constituents.

Such attitudes are deeply depressing and contrast sharply with the positive attitude towards integration and life in Ireland expressed to us by many of our clients. It also contrasts sharply with the positive innovation of citizenship ceremonies for new Irish citizens that were recently introduced (see our post). 

We followed with interest  the ceremony held in Cork last week where retired High Court judge Mr Justice Bryan McMahon welcomed 635 “new Irish”. 

Mr Justice Bryan McMahon welcomed the “new Irish” saying: “The State, in granting you citizenship, does not ask you to surrender your own identity . . . when you make your life here, do not forget the country or the culture you come from, bring your stories, your music, your games – enrich our lives.”

The introduction of the citizenship ceremonies is certainly a positive, if limited step, towards addressing integration of migrants into Irish society. But much more is needed. We recall that the programme of the current government promised to: “promote policies which integrate minority ethnic groups in Ireland, and which promote social inclusion, equality, diversity and the participation of immigrants in the economic, social, political and cultural life of their communities.”

The Integration Centre recently launched a Roadmap to Integration that puts forward a number of affordable and practical proposals. You may recall our previous post on this important document. We again welcome implementation of such a roadmap and hope that an inclusive regime will help overcome the negative attitudes highlighted in this survey of TDs.

Brophy Solicitors

12.12.11 

LAUNCH OF EU IMMIGRATION PORTAL

We learnt last week of the launch by the European Commission of the Immigration Portal.

The portal serves as a valuable new resource on immigration rules and law in the European Union specifically for non-EU citizens. It is the outcome of three years development by the European Commission in conjunction with the Migration Policy Group. Information on migration within the EU for EU citizens continues to be available here.

The laws and policies for each of the 27 Member States are detailed on the website, together with links to relevant authorities and support organisations. The Irish section provides a breakdown of the various laws and policies as they apply to family members of non-EU citizens, non-EU workers, students and researchers.

You may also be interested in our new website that will be available soon. This will provide expanded information on immigration laws and policies in Ireland that we hope you will find useful!

Brophy Solicitors

25.11.11

Gardai report ever-increasing cases of human trafficking

A seminar held in Dublin yesterday by the European Union’s anti-trafficking co-ordinator Myria Vassiliadou uncovered that since 2008 approximately 215 cases of the illegal act had come to the attention of the Gardai.

Furthermore, it was noted that human trafficking is one of “the most profitable crimes with the least number of prosecutions,” and unfortunately it seems that this figure is only the tip of the iceberg according to the Immigration Council of Ireland. 

In the event of bringing a case, possible sufferers “are regarded as a victim until proven otherwise…and they are immediately given access to services like legal aid, health services and accommodation where accommodation is required”. However the problem is that very few victims in Ireland have actually been accounted for and therefore do not benefit from the services provided to the victims of this crime. 

The clear message of the seminar was that more victims of human trafficking in Ireland need to speak out in order to avoid finding themselves stuck in the asylum process without the appropriate care needed.

In a bid to improve this area of immigration, Ireland has opted into a new EU directive due to come into effect in April 2015, which provides for better early identification and assistance to victims of trafficking as well as a demand for an increase in services available to those already identified. 


Brophy Solicitors 
23.11.11

NEW FEES FOR CITIZENSHIP APPLICATIONS

The Department of Justice and Equality recently introduced an application fee of €175 for all Naturalisation applications made after the 10^th November 2011. This fee is non-refundable and will apply even if you have lodged an ineligible application, for example where you do not have the required reckonable residency. Therefore it is important that all applicants ensure that they are entitled to apply for Naturalisation before they submit the application!

Brophy Solicitors
21.11.11

The narrow application of Zambrano: Towards an inclusive citizenship?

We recently attended an excellent seminar hosted by the Irish Centre for European Law  on the hot topic of Zambrano and EU citizenship. The seminar was entitled ‘Union Citizenship in Practice’ and had eminent speakers, including Advocate General Eleanor Sharpston of the Court of Justice of the European Union. 

There were several interesting presentations that covered highly relevant areas such as the rights of third country family members of Union citizens, reverse discrimination and the approach of the Irish courts to the decision in Zambrano. The Honourable Mr Justice Gerard Hogan chaired the session. 

We were yet again struck by the narrow application of Zambrano by both the Department of Justice and Equality and the Irish courts which was highlighted by Michael Lynn, BL in his paper ‘Citizenship and Residence Rights in Ireland’. 

The narrowness of the interpretation was made more striking this week by the inauguration of our ninth President, Michael D Higgins, who has spoken passionately and eloquently about the concept of an inclusive citizenship. Michael D Higgins aspires to a citizenship that allows each citizen to participate in society and to develop their personal and social selves in communal solidarity. 

Alan Shatter does not appear to agree. 

The model of citizenship being applied by the Department of Justice and Equality in whether to grant residence to the foreign parents of Irish citizen children, appears to be far from such an inclusive citizenship. An Irish citizen child now residing outside the State will struggle to fit into the criteria being applied by the Department. They are expected to reside outside the State until they reach 18, whereupon they may return to the State and enjoy their citizenship fully. Their inclusive citizenship will, it seems, have to wait until they are eighteen. 

In our view, it is fundamentally unfair and inconsistent with our Constitution and EU Treaty provisions that Irish citizen children enjoy different rights and entitlements, depending on their parentage and residence. That a child can simply reassert their Irish citizenship when they turn 18 and become independent from their parents flies in the face of any concept of inclusive citizenship. As Justice Fennelly stated in his dissenting opinion in the Supreme Court decision of A.O. & D.L.: “The notion of postponement is offensive to logic ... a child, who is de facto deported from the State before his education commences, cannot conceivably be “part of the Irish nation” or “share its cultural identity and heritage.”

Brophy Solicitors

21.11.11

PILA/PILS PROJECT JOINT ANNUAL CONFERENCE 2011

We were very pleased to attend the PILA/PILS conference on Friday 11^th November held in the wonderful setting of Croke Park. The conference, entitled ‘Political Commitment, Practical Protection: Using the ECHR North and South’ featured speakers who provided insight into the implementation of the European Convention of Human Rights both in the Republic of Ireland, Northern Ireland and Great Britain. 

FLAC solicitor Michael Farrell provided an interesting analysis of his involvement in the transgender case of Lydia Foy and how Ireland was found to be in breach of the terms of the Convention.  Gerry Hyland, human rights solicitor practicing in Belfast provided a practical guide on how the ECHR has been relied on and developed through a broad spectrum of litigation in Northern Ireland.  Several workshops provided key information on how the articles of the Convention have been and can be relied on in various areas of public interest law including: Child Law, Mental Health, Travellers and Housing.  It was extremely educational and useful to hear speakers representing both North and South on key problem areas arising within public interest law affecting residents throughout Ireland. 

The audience were however captivated by one speaker in particular as Shami Chakrabarti, Director of Liberty in the UK spoke eloquently about the importance of upholding human rights standards across borders.  Changes to the human rights scheme in the UK would be a negative step according to Ms. Chakrabarti who spoke about the coalition government’s proposal to make human rights and fundamental freedoms more contingent on citizenship and good behaviour: "Crude and ignorant attacks on the Human Rights Act in the UK should be troubling to friends of freedom further afield. How bizarre to talk up universal human rights abroad whilst seeking to dilute and diminish them at home. Fundamental rights and freedoms cannot be contingent on any particular patriot status," commented Ms Chakrabarti.

Speakers emphasised the growing need to ensure equivalent protection of fundamental freedoms and human rights both North and South given the current political climate and given the guarantees provided by the Good Friday Agreement. 

We would like to thank PILA/PILS for their excellent organisation and for the effort they put into organising this year’s conferences which was enjoyed by all.

Brophy Solicitors

16.11.11

ZAMBRANO: STAMP 4 AND EDUCATIONAL SUPPORT

We contacted the Department of Justice and Equality recently in respect of a number of queries raised regarding entitlements to education support for non nationals resident on Stamp 4 Status.

Many persons residing in Ireland are eligible for an ‘Immigration Stamp 4’ which, according to the Minister’s Office, entitles the holder to work without need for an employment permit but does not confer an entitlement to any particular public service or funding as such matters are determined by the relevant government departments or State agencies.   One of our clients has been granted a Stamp 4 for one year based on discretionary Humanitarian Leave to Remain.  She is also the mother of an Irish citizen child and wants to apply for a Stamp 4 pursuant to Zambrano as the policy operating from the Department generally provides for a Stamp 4 for three years. She intends to enrol in a Third Level Education Scheme under which she will be eligible for free fees based on her current status in the State.  However, the eligible categories of stamp holders entitled to avail of such a scheme do not yet specifically cover ‘Zambrano’ type Stamp 4 holders. 

We contacted the State in an attempt to ascertain information on whether or not our client would be entitled to continue to be eligible to avail of free fees under Stamp 4 (Zambrano).  The Minister advised that the Department has no function in matters relating to educational supports and that this issue will be a matter for the Department of Education and Skills.

We have however been informed that the Department of Justice and Equality has set up a dedicated email enquiry database under which education grant awarding bodies can submit queries in relation to the immigration status of their applicants.  Such information is not entirely useful to our client but it would be worth contacting the Department of Education and Skills if you are concerned that your stamp might not entitle you to access educational support. 

We believe that persons who have been granted permission to remain in Ireland to care and support their Irish citizen children, should not be treated any less favourably in terms of accessing services or public funding in respect of education, than those who have been granted permission to remain on humanitarian grounds. There is potential for great confusion as to the type of residency permission that is conferred on a person who is entitled to reside in the State pursuant to Zambrano, a decision that issued from the ECJ relying wholly on the Treaty on the Functioning of the European Union. 

Brophy Solicitors

18.11.11

Lessons from the Heated Debate on Immigration in the UK

The UK Home Secretary, Theresa May is again under the spotlight on immigration front. Following soon after ‘catgate’, she has spent the week fending off calls for her resignation.  

The Home Secretary is under fire for an instruction to her officials to relax checks on EU biometric passport holders at UK ports and airports during the busy summer period. According to the Home Secretary, officials in the UK Border Agency subsequently went beyond her instruction, relaxing checks on EU non-biometric passports. It is unclear at this stage who authorised what. There have been heated exchanges between the UK Border Agency and the Home Secretary with the head of the UK Border Agency, Brodie Clarke resigning and claiming constructive dismissal.  

It is striking that such a trivial matter can create such a media storm. Observed from afar, the political debate on immigration in the UK time and time again shows itself as reactionary, negative and misinformed.  

This particular debate appears to overlook some basic facts about illegal immigration. That is, the vast majority of migrants to the UK enter legally with a valid work, student or visitor visa – and many then overstay their permitted period and become illegal migrants. Illegal entry and forged passports are not the main problems for the UK Border Agency. Also, as Alan Travis in the Guardian points out, Theresa May’s rationale behind the relaxed checks seems sound: targeted checks are more effective at identifying illegal migrants whereas blanket checks mean more delays and are resource intensive.  

The UK example should be instructive to our own media and public debate. The media has an important role in informing people’s opinions on asylum seekers, refugees and migrants generally and can feed into fuelling racial prejudices and ‘flood gate’ fears. It is worth bearing in mind that the evidence on which media reports are based is often shaky. A recent report by the Migration Observatory at the University of Oxford identified ten problems with the evidence informing such a debate on immigration. The report shows how difficult it is to accurately assess for example the impact migration has on public services, or even at establishing basic figures for how many illegal immigrants there are in the country.  

We anticipate more difficult times ahead for Theresa May holding what seems to be the poisoned chalice of Cabinet postings. Meanwhile, we hope that our own political and media debate retains a sense of proportion avoids the Daily Mail sensationalism of the UK.  

Brophy Solicitors  

16.11.11  

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.