Opening of the Irish Refugee Council Law Centre

Congratulations to the Irish Refugee Council (IRC) on the official opening of their new independent Law Centre!

The President of Ireland, Michael D Higgins, last Friday formally launched the IRC Law Centre together with the European Database on Asylum Law at a very well-attended event at the Distillery Building. The Law Centre currently employs two solicitors and two legal officers. It aims to provide early legal advice to asylum seekers in the initial stages of the asylum process. The service can be reached through an outreach clinic, contacting the centre directly, or referrals from other organisations.

In his address, President Michael D referred to the protection gap and unmet need for legal advice for asylum seekers that the Law Centre seeks to fill. The President referred to his own previous and extensive experience as a TD dealing with numerous constituents who were facing difficulties with the immigration process.

Our own experience is that asylum claims are often poorly investigated and presented at the early stages, which leads to the need for further legal challenges later. This impacts negatively both on the applicants, who often wait a very many years for a final outcome, and on the courts system, which has become overburdened with unresolved asylum claims.

We anticipate that the Law Centre will provide valuable advice and support to applicants at the earliest stages of the process and help ensure that such claims are properly presented and future delays kept to a minimum.

We wish the Centre every success!

Brophy Solicitors

19.02.12

EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.

The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.

The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.

The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.

The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 

The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.

This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.

Brophy Solicitors

17.02.12

Immigration and Human Rights Intern wanted for immediate start!

We are currently accepting applications for an intern to work with us on immigration and human rights cases.  If you have an interest in human rights and immigration and you have experience in legal researching, we would love to hear from you. The position is unpaid but we will contribute towards expenses.

Please contact Sarah McCoy on 016797930 or email your CV and a cover letter to:

Sarah.mccoy@brophysolicitors.ie

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

SHATTER ANOUNCES TWO INIATIVES: IMMIGRANT INVESTOR PROGRAMME AND START-UP ENTREPENEUR SCHEME

The Minister for Justice, Equality & Defence, Mr. Alan Shatter, TD, recently the introduction of two new immigration initiatives aimed at facilitating (non EEA) migrant entrepreneurs and investors who, in return for permission to reside in the State, are prepared to invest here for the purpose of saving or creating jobs.

The Immigrant Investor Programme:

The sort of investments envisaged will include a specially created low interest Government Bond, capital investment in an Irish business, endowments in the cultural, sporting educational or health areas will also be considered.The level and duration of financial commitment required from the Investor will depend on the nature of the investment but will generally range from €400,000 for endowment-related investments to €2 million in the new Immigrant Investor low-interest bearing Government Bond to be devised by NTMA in conjunction with the Immigration authorities. The level of investment in business entities where jobs are being created or saved will generally be €1 million and the Department will be guided by and reliant upon the advice and expertise of IDA Ireland and Enterprise Ireland in assessing individual proposals.

Approved participants in the Investor Programmes and their immediate family members will be allowed enter the State on multi-entry visas and to remain here for a defined period. Ordinarily this will be for a period of 5 years - reviewable after 2 years.

The Start-up Entrepreneur Programme:

The Start-up Entrepreneur Programme provides that migrants with a good business idea in the innovation economy and funding of €70k can be given residency in this State for the purposes of developing their business (this compares with a previous minimum funding requirement of €300k). No initial job creation targets will be set as it is recognised that such businesses can take some time to get off the ground. Projects will be evaluated by an Evaluation Committee with State Agencies playing a key role in "picking winners" or those who demonstrate a good idea or the potential to be a winner.The business proposal must have a strong innovation component.The applicant must not be a drain on public funds.All applications for both programmes will be considered by an Evaluation Committee comprised of representatives of IDA Ireland, Enterprise Ireland, the following Government Departments; Finance; Jobs, Enterprise and Innovation; Foreign Affairs and Trade; Health; other Government Departments as the need arises and the Minister’s own Department of Justice. Applicants must be of good character and be able to support themselves while in Ireland. Applicants will be required to attest to their bona fides on affidavit sworn here.

An Annual Report will be published on the operation of the Programmes and they will also be reviewed to ensure that they continue to meet their objectives. The Programmes offer no special access to Irish citizenship. Beneficiaries will be subject to the same rules as other migrants in that regard – i.e. generally residence in the State for at least 5 years.

Next Steps

The Minister indicated that he hoped to have the new schemes formally launched by mid March when the detailed rules governing the Programmes which are being worked upon by officials in the Department of Justice will be published. He said no new legislation is required as the pre-existing legislative powers of Ministerial discretion are sufficient to enable the programmes to operate in a flexible manner.

Irene Carney

irene@brophysolicitors.ie

01.02.12

DETERMINATION OF ZAMBRANO CASES TO DATE

Pamela Duncan in the Irish Times reported last week that more than 850 non-EU parents of Irish-citizen children have been granted residency in Ireland since the ECJ issued its ruling in the Zambrano decision which created rights of residency for parents of Member State citizen children. Apparently, six parents of Irish citizen children who were previously deported have been granted permission to re-enter the State. 

1000 cases have been processed to date by the Minister who said that the decisions were taken “in the best interests of the welfare of eligible minor Irish citizen children”.

The Irish Times reports that 700 cases remain outstanding; ‘In approximately half of those cases the department has requested further documentation or clarification from the applicants before their cases can be progressed. This number does not include other non-EU parents of Irish-born children who had an existing right of residency, for example where people were lawfully resident on a worker, spouse or student visa.’ 

We have a number of outstanding applications as well as a number of applications which we have requested a review following a negative decision. One such decision was reached upon the Minister’s determination that the father of an Irish citizen child who resides with his child in the State, was not seen to have shown evidence of a ‘relationship of dependency’ between both he and his child. Other applications are outstanding whereby the applicant parents reside outside of the State with their Irish citizen child(ren). We submit that a refusal of such applications is in turn a refusal to permit entry to the State by an Irish citizen. We are however pleased that one application concerning the father of an Irish citizen child residing outside of the State was granted after a nine month delay in determining the visa application. 

Various complications arise in the submission and in the determination of Zambrano applications. It seems to us that the very reliance on the word ‘Zambrano’ when applying for residency/Stamp 4 on behalf of a client triggers a delay on their application for residency where that application might also be based on other factors for example a relationship with an Irish citizen. We have also encountered situations whereby applications to renew a permission granted under leave to remain are delayed whenever submissions are made in respect of an Irish citizen child. Therefore, otherwise uncomplicated, straightforward applications for residency which would normally be considered rather promptly are faced with delays and requests for further and specific documentation. We note that in one of our cases, an applicant had been granted a visa to join his Irish partner in the State without any difficulty. He is also the father of his partner’s child, an Irish citizen. As a result, he was permitted to register under Stamp 4 when reporting to the GNIB, which in our experience has been standard practice, but was asked to make an application to the Minister for residency based on his parentage of an Irish citizen child. This application is still pending, the applicant has not been permitted to work, even for a temporary period and has been forced to return to his home country much to the dismay of his Irish partner and mother of his child. 

In another situation, two applicants from the same country, with the same background and immigration history had both submitted applications for leave to remain on the very same date, 3years ago. We were notified by the Repatriation Unit that both applications were due to be considered. One of the applicants had in the meantime become father to an Irish citizen child. His application for leave to remain was put on hold. His friend’s application was determined and was successful. 

We will keep you informed as matters develop and welcome your thoughts and comments on these issues. 

Sarah McCoy

sarah@brophysolicitors.ie

01.02.12

Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 

Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.

A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28^th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.

Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.

These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.

Brophy Solicitors

23.01.12

Stay on Deportation Order Issued

A Nigerian man has been issued a stay on his deportation in the High Court today, despite alleged deception on his part in relation to his identity as a former male model working for a UK property firm. Mr Justice Hogan issued the stay but stressed that his decision was "exclusively" motivated by the welfare of a child "Baby C". The infant is the child of the woman who has made the aforementioned allegations. The man in question is part of unfinished District Court proceedings in relation to care and custody of this child. The stay on proceedings will hold until the District Court makes a decision. If the man is successful in the District Court, the State must reassess his deportation order on foot of the child’s right to the care and company of her father balanced against a fair immigration system. If he is unsuccessful, the stay on the deportation order will lapse.

The man in question entered the State illegally on another man’s passport but claimed asylum under his own name. The passport had been stolen in Vienna and thus the Nigerian gentleman pled guilty and served a 6-month sentence for handling stolen goods.

After forming a relationship with a professional Irish woman, it transpired he deceived her into thinking he lead an affluent lifestyle as a former male model working for a UK property firm. She had no knowledge of his criminal convictions or his involvement in the asylum process. The baby was born in late 2010 but the relationship had already broken down. The woman claims that the applicant’s interest in guardianship and custody are a mere ploy to aid his immigration issues.

As there seemed no particular hope of reconciliation between the pair, Mr Justice Hogan was of the opinion that should the gentleman be removed from the state, it was reasonable to believe that he would not have any contact with Baby C, thus he granted a stay on these grounds.

Brophy Solicitors

20.1.12

The Issue of Non English Speaking Deponents Swearing Affidavits

A recent article in the Law Society Gazette by David Boughton, a practicing barrister, explores the difficulties encountered by solicitors when swearing affidavits of clients who cannot understand English. He draws attention to a prevalent issue. No provision has been made for any procedure of swearing and filing of affidavits by litigants who speak little or no English in neither rules of court nor legislation as noted by Cooke J of the circumstances of ANM v Refugee Appeals Tribunal. 

The author notes the decision of Cooke J in Saleem v Minister for Justice in deciding on the striking out of an affidavit, which contained an error of communication. The judge recommended, given that the applicant did not speak English at all, the approach of a further procedure to be followed for the swearing of affidavits by such persons. It followed that the affidavit should be sworn in the language the deponent speaks and should then be translated by an appropriately qualified translator with both the original and translated document to be put in evidence as exhibits to an affidavit in English sworn by the translator. This was since adopted in the English courts in 1998.

This "three affidavit" procedure is now in use here in Ireland although some difficulties are obvious - such as the additional cost and expense of translation. Boughton warns though, that a failure to adhere to this procedure may require that proceedings be adjourned  to facilitate the filing of correct affidavits, and with adjournment orders attributing more costs he advises all practitioners to familiarise themselves with the procedures. 

Brophy Solicitors 

05.01.12

UK Immigration Figures Set to Drop

Following the release of Ireland’s falling asylum figures for 2011 comes speculation of a fall due in the number of migrants to the United Kingdom. The Guardian reports today a projected 10% fall in immigration to the UK due to the worsening financial crisis. 


This is still far from the election promise of the Conservative Government of tens of thousands drop in immigration figures. In fact the efforts of the coalition have been severely criticised as making very little headway in regards illegal immigration. Furthermore some new policies on immigration have been seen to hamper economic activity in the UK, such as decreasing the amount of foreign students entering the UK. The UK government remains steadfast in its support of the policies however. 


Read the article in the Guardian examining the difficulties in fulfilling coalition promises of a reduction.  


Brophy Solicitors
04.01.12

Judgment in Rizwana Aslam Case

Case Summary 


On the 20^th December 2011 Mr Justice Gerard Hogan issued judgment in the case of Rizwana Aslam v Minister for Justice and Equality, Garda National Immigration Bureau, Ireland and the Attorney General.

The case concerned a challenge against a Transfer Order made by the Minister pursuant to Article 7 of the Dublin II Regulations in respect of a Pakistani national and member of the Ahmadi faith.  Ms Aslam was also eight months pregnant at the time of the High Court hearing. The basis for the Transfer Order was that Ms Aslam had originally obtained a visa for entry to the United Kingdom and resided in the UK prior to claiming asylum in Ireland. In such circumstances, it is permitted by the Dublin II Regulations (or Article 9(4) of Council Regulation (EC) No. 343/2003) that an asylum seeker be transferred to the Member State in which they first arrived to have their asylum application determined. Minister had issued the Transfer Order in accordance with this law, and with agreement from the UK.

The primary relief sought before Mr Justice Hogan was an injunction restraining Ms Aslam’s removal to the United Kingdom. The injunction application was grounded on two main points; that Ms Aslam’s late stage of pregnancy prohibited removal at this time, and also that fact that her partner was a recognized refugee and residence in Ireland required that her application for asylum should be processed in this State.

Judgement

In his written judgment dated 29th December, Mr Justice Hogan firstly assessed whether Aslam and her partner’s relationship and previous marriage by proxy were sufficient to amount to a legally recognizable marriage or “unmarried partner in a stable relationship”, as per the wording of the Dublin II Regulations. Following a detailed review of the law in this area, Mr Justice Hogan recognized that Irish law does differentiate between married and unmarried couples in the area of asylum law. He cited Mr Justice Cooke’s previous dicta in the judgement of Hamza v Minister for Justice [2010] IEHC 427 as follows;

“ the recognition of the marital relationship of spouse and refugee ought not to be confined to cases in which proof is forthcoming of a marriage validly solemnized in foreign law and recognized in Irish law.”

Following Mr Justice Cooke’s guidance, Mr Justice Hogan concluded that Ms Aslam should be regard as being married to her husband for the purposes of Article 7. In the normal circumstance, it would follow from Article 7 that Ms Aslam should be permitted to remain in Ireland for the purposed of her asylum application, as her husband is a recognized refugee in this State. However, as indicated by Mr Justice Hogan, this is not an absolute entitlement, and he highlighted the important fact that the Minister was not put on notice of Ms Aslam’s family circumstances in the State. In fact, she indicated to the Minister that she was single. Mr Justice Hogan found therefore that the Minister cannot be faulted in issuing a transfer order against her and it was too late at that stage for her to exercise her Article 7 rights.

Being mindful of the fact that Ms Aslam was heavily pregnant, Mr Justice Hogan proposed to grant an interlocutory injunction restraining her transfer by either by sea or air to the United Kingdom but allowing a transfer by road to Northern Ireland on the understanding that she would not be removed from the island of Ireland until after the delivery of her unborn child.

Comments

We believe the significance of Mr Justice Hogan's judgement is twofold. Firstly, Mr Justice Hogan fairly and correctly recognised Ms Aslam's marital status despite the fact that her marriage was by proxy, and not legally solemnized in this State. We are happy to see the implementation of the Hamza judgement working to recognize the reality of an asylum seekers relationship status in this way. Secondly, Mr Justice Hogan's finding that the Minister cannot be faulted for excluding from his decision important and relevant information that was not provided to him is reasonable. This is the only reasonable finding that Mr Justice Hogan could make. It again highlights the importance for all applicants and their legal representatives to provide the Minister with full, detailed and accurate information relevant to the case. 

Brophy Solicitors

04.01.12

2011 Immigration Figures Released as Minister Looks Ahead to 2012

Ireland saw a sharp decline in the numbers of asylum seekers entering the country in 2011. Only 1250 people claimed asylum here last year, just 1/10 of the peak figure of 11,600 in 2002.

The decrease in figures has been attributed to increased control measures. These most recent figures are the ninth successive fall in numbers claiming asylum since its highest point ten years ago. But also relevant in the economic downturn as Ireland’s attraction as a desirable destination point wanes.

Minster Shatter announced the figures in a press release yesterday. Alongside statistics  for 2011 came welcome news for those involved in other immigration processes. A clear statement on policy in regards Family Reunification is promised. Also a six-month processing time can be expected for all standard citizenship application from this Spring onwards.

Other measures will include the implementation of an Immigrant Investor Programme, a start up Entrepreneur Programme for Immigrants, a review of the operation of the Pilot Visa Programme, implementation of a Civilianisation officer pilot programme at Dublin Airport, to be launched this month, and completion of work on the development of an English language/Civics test for naturalisation applicants. 

Minister Shatter also detailed that 2012 would see the department looking across the water: ‘In particular, the promotion of the Visa Waiver Programme in the context of the London Olympics will be a key priority with the aim of boosting tourism and visitors to Ireland. Similarly, new initiatives targeted at immigrant investors and entrepreneurs will be prioritised with the purpose of attracting inward investment and job creation.’


Minister Shatter's full statement is available here. 


Brophy Solicitors 
04.01.12 

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