PERMANENT RESIDENCE – THE ZIOLKOWSKI/SZEJA CASES

Permanent residence is to be granted to EU citizens after five years of continuous legal residence in another member state. The status of permanent residence ensures that citizens no longer have to comply with conditions that must be met by those without that permanent residence status – such as the on going requirement to be economically active or sufficient resources with adequate medical insurance. Furthermore, permanent residence gives Union citizens increased protection from expulsion.

We are working on many applications for permanent residence for our clients, and we watch the developing case law from the Court of Justice with much interest. From time to time, we like to bring some of the more helpful case law to our reader’s attention. One such judgement was delivered by the Grand Chamber of the Court of Justice the 21^st of December 2011 - in the cases of Ziolkowski and Szeja (Joined Cases C‑424/10 and C‑425/10), both cases referred from Land Berlin.

The Court of Justice was asked to consider the cases of two Polish nationals who had been refused applications for Permanent Residence pursuant to the Citizenship Directive (2004/38/EC), and were further refused on going permission to remain on the basis that the applicants were not economically active/self sufficient with medical insurance.

The first question referred to the Court of Justice was as follows;

Whether Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident in the territory of the host Member State for more than five years on the sole basis of the national law of that Member State must be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not fulfil the conditions laid down in Article 7(1) of the directive.

Following an analysis of other provisions in the Directive, the Court of Justice summarized the three stages of EU Law

39        First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State.

40      Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.

41      Third, it is apparent from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State.

At paragraph 46, the Court concluded that legal residence after the first three month period requires residence in compliance with the conditions contained in the Directive, and particularly Article 7 (1) of the Directive, that is either as a worker/self employed person/student/financially self sufficient person (with health insurance). On the fulfilment of five years in conformity with these conditions, the union citizen acquires the right of permanent residence, and should be subject to no further conditions.

However, the Court emphasized that a Union citizen who has resided for five years in the host Member State and during that time was not an economically active person, cannot presume eligibility for permanent residence.

In the cases referred to the Court, it was accepted that the applicants had never satisfied the conditions laid down in Article 7(1) of Directive 2004/38, and therefore were not entitled to permanent residence.

In answering the second question the Court found as follows;

“periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.”

Brophy Solicitors

12.04.12

EU TREATY RIGHTS AND PERMANENT RESIDENCY – UK DEVELOPMENTS

CASE STUDY:  Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC) is a case concerning  the approach to be taken by the First and Upper Tribunals in deciding whether the non-EEA national family member (of an EEA national) has or has not acquired the right to reside permanently in the UK under Art 16 of Diretive 2004/38/EC which is transposed into UK law by Regulation 17 of the EEA Regulations. The right of permanent residency is acquired by EEA nationals and their family members who have resided in the UKfor a period of 5 years. 

In Idezuna the Nigerian Appellant married his spouse who was a national of Portugal in April 2004.  He had been given a 5-year residence card showing that he was the family member of an EEA national, which expired on the 13 September 2009.  Mr. Idezuna and his wife divorced in March 2010, and Mr Idezuna applied to the appropriate authoirties for a residence card showing that he was entitled to live in the UK permanently. 

Mr Idezuna’s application was refused.  The UK Border Agency said that he had not provided evidence showing that his Portuguese wife had been exercising her EU Treaty rights at the time of their divorce or that he had been living in the UK in accordance with the EEA Regulations for a period of 5 years.  

He appealed the decision to the First Tier Tribunal which upheld the UKBA’s decision, stating that Mr Idezuna had not shown that his ex wife had been exercising Treaty rights in the UK for the 5 years up to the divorce.  He had also not shown that he lived in the UK continuously after marriage. 

Subsequently, the Upper Tribunal found that the First Tier Tribunal judge had materially erred in law.  The judge had failed to appreciate that the Appellant had acquired the necessary 5 years living in the UK from the date of his marriage in April 2004 until April of 2009.  During this time his ex-wife had been in the UK"unbrokenly” exercising her EU Treaty rights.   The Immigration Judge’s error was in failing to include in his calculation of the 5 year period, time prior to the coming into force of the Directive.  (See Secretary of State for Work and Pensions v Lassal (2011) Imm AR 134, in which the ECJ had held that any interpretation of the continuous residence requirement such  that the first or last day of the period of five years' continuous residence had to fall after 30 April 2006 (when the Directive came into force) would be contrary to the purpose and effectiveness of the Directive.)

The Appellant had therefore acquired his right to permanent residence in the UK in April of 2009 (when he was still married to his wife). Whether or not he was living together with his wife for the whole of this period was irrelevant.  The fact that they both had been in the UK was important.  (See also Turkey [2011] UKUT 89 (IAC) (07 March 2011)  Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (UK) applies to those who entered a genuine marriage where both parties have resided in the United Kingdom for five years since the marriage; the EEA national‘s spouse has resided as the family member of a qualified person or otherwise in accordance with the Regulations and the marriage has not been dissolved. The ‘residing with’ requirement relates to presence in the UK; it does not require living in a common family home.)

The second matter to assess was whether or not Mr Idezuna had been living in the UK continuously since the date of marriage.  The Immigration Judge in the First Tier Tribunal had taken this point against Mr Idezuna without giving him an opportunity to comment on it.  In fact, there had been only two short absences which fell comfortably within those permitted by the Directive’s Article 16 (3) and Regulation 3 (2) of the transposed UK Regulations. 

The Tribunal made it clear to the First Tier Tibunal that the focus was not so much directed to the nature of the relationship between the non-EEA national family member of the EEA national. What had happened up to and after Mr Idezuna’s divorce, and what his wife had been doing at those times had in fact been wholly irrelevant to the question of whether he had the right to reside in the UK.

Brophy Solicitors
28.03.12

CASE STUDY – SOMALI ASYLUM SEEKERS AND DILEMMA FACING DECISION MAKERS - QFC, AMC v RAT, MJELR, (2012) IEHC 4

Justice Cooke recently granted leave to seek a judicial review in respect of a negative asylum decision on the basis of the decision maker’s failure to assess the possibility of future persecution open to asylum seekers if returned to Somalia.  Asylum was refused to the Applicant as result of credibility findings but Justice Cooke noted the dilemma that faces decision makers in cases where credibility issues arise but the applicant is also from an undeniably dangerous country. 

Justice Cooke held that, “any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so.”

The judge held that the fact that the Applicant had a child with a man who was not her husband could lead to persecution if she was returned to Somalia. The lack of credibility with regard to past persecution did not exclude the possibility of future persecution. He held that “the particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence.”  

You can read the full judgement here.

CASE STUDY - ‘EXTENDED FAMILY MEMBER’ DIRECTIVE 2004/38EC (UK)

CASE: Dauhoo v. Secretary of State for the Home Department-UK Upper Tribunal (Immigration and Asylum Chamber) Rejects Claims of Applicant that he is an “Extended Family Member”

In this case, the Upper Tribunal (Immigration and Asylum Chamber) clarified what an Applicant must show to qualify as an extended family member of an EEA national for the purpose of being granted a residency card under Article 3(2)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citzens of the Union and their family members to move and reside freely within the territory of the Member State.  The Tribunal, interpreting the UK regulation transposing the Directive, found that an Applicant must show either his dependency on an EEA national relative or membership of the EEA national’s household prior to the Applicant’s arrival in the UK (“prior “ test) AND after his arrival in the UK (“present” test).  The Tribunal rejected the notion that an Applicant was required to show prior and present connection in the same capacity.  It construed the regulation purposively, finding that the requirements of dependency and household membership are alternatives rather than conjunctive because to do otherwise “would be contrary to the stated underlying purposes of facilitating the residence of such persons.”  

The Appellant, a citizen of Mauritius, arrived in the UK on six month visit visa to his sister, an EEA national, in 2004.  He came with his spouse, also an EEA national.  He received grants of permission for leave to remain as a student until 2011.  His marriage broke down in 2009.  He claimed to have been dependent on his sister since his arrival.  He applied for a residence card in 2011 on the basis that he was an extended family member of his sister, which was denied by the Secretary of State for the Home Department on the basis that “there was no evidence to show that you were with or dependent on your sister in another country immediately prior to your arrival in the UK in 2004, nor have you supplied any evidence that since you arrived in the UK you have been resident with or financially dependent on her.”  The Appellant appealed, offering further evidence that since the breakdown of his marriage, he had been in a durable relationship with another EEA national since mid 2009.  The First-tier Tribunal (FTT) judge had upheld the earlier decision, finding credibility issues with respect to the Appellant’s claims and rejecting the Appellant’s claim that he had been dependent on his sister when he lived in Mauritius or when he arrived in the UK.  

However, in the Appellant’s case, the Tribunal found that “whilst [appellant] turns out to have established that he met the ‘present’ requirement … by virtue of being a member of the EEA principle’s household in the UK [the FIT judge’s findings had not expressly made a finding on that issue]” he was “still shut out” because he had failed to meet the “prior” test.  The Appellant, who acknowledged that he could not show prior household membership, had argued to the Tribunal that the FIT judge erred in assessing appellant and his witnesses’ evidence as well as the documentary evidence, in support of his claim of prior dependence on his sister when he was in Mauritius.  The Tribunal found that the FIT judge’s assessment that the Appellant and his witnesses’ evidence lacked credibility was for “sound reasons” and that the FIT judge had acted within his scope in determining that the documentary evidence offered in support of this claim “lacked substance” and was “quite insufficient to demonstrate the appellant’s claimed dependency.”

The Tribunal also found that the FIT judge had not erred in rejecting the Appellant’s argument that he had an EEA claim based on a durable relationship with his EEA partner based on credibility grounds as well as his claim under Article 8 of the European Charter on Human Rights.  With respect to the Appellant’s former claim, the Tribunal agreed that the FIT judge had good reason to find appellant’s claim of having been in a relationship with an EEA national from mid 2009 to May 2011 not credible, as he never mentioned the relationship when he submitted his application for a residence card in January 2011 or when he lodged his grounds of appeal in May 2011, and that “on the judge’s findings the relationship had only been shown to exist, if at all, very recently and on the appellant’s own evidence his partner was economically self sufficient.” 

The Tribunal concluded that, “on the basis of the evidence before the FIT judge a durable relationship had not been established.”    As regards the latter claim that the Appellant’s Art. 8 right to family life had been infringed, the Tribunal concluded that “the judge’s findings of fact (which [he] found to be unaffected by legal error) more than justified him in concluding there was no violation and that he had not sufficiently established family life where he and his sister were both adults and the Appellant was in good health. 

BROPHY SOLICITORS

23.03.12

ROMANIAN AND BULGARIAN NATIONALS – RIGHT TO RESIDE AND ACCESS TO SOCIAL BENEFITS

Romanian Bulgarian nationals who are the parents of Irish citizen children now have access to the Labour Market within Ireland on the same basis as other EU nationals. See “Employment Permit Information for Romanian Naiontals” on the Department of Jobs, Enterprise and Innovation website;

Many of the persons affected by the Minister’s change in policy are in situations where they have been refused access to social benefits, including Jobs Seekers Allowance, Child Benefit payments and Supplementary Welfare Allowance.  Having been refused these payments, they are now without any means of income whatsoever. They have been refused access to social benefits usually on the basis of the Habitual Residence Condition, or for the reason that they are not eligible to take up employment in the State. Many have doubted the legitimacy of refusals on the basis of the Habitual Residence Condition, given that the persons have often resided in the State since 2007, have children in school, and have clearly made Ireland their “centre of interest”.

Until now, these Romanian and Bulgarian nationals’ status in the State has been somewhat unclear. They were not legally resident within the ambit of Directive 2004/38, nor did the State recognize an alternative right to reside under the Treaty provisions. However, there was no legal means under EU law which permitted the State to lawfully require their removal from the State. Many such persons have fallen into destitution, surviving with the assistance of charities and voluntary organizations.

The Minster’s change in policy this week to permit Romanian and Bulgarian nationals who are the parents of Irish citizen children access the Labour Market now changes their status in the State, and also their entitlements to access social benefits. Such persons are now eligible to take up employment, and can commence a legitimate search for employment. Those Romanian and Bulgarian nationals who are already in employment, will be immediately regarded as workers within the meaning of EU law and Directive 2004/38. Their right to reside will be also immediately legitimised. They will acquire the benefits of worker status under EU law, for example, they will have access to the State welfare system, including child benefit payments.  Should they become involuntarily unemployed and register as a job seeker, they will retain their worker status (and thus their right to reside) either indefinitely if they had worked for over one year, or for at least a period of six months if they had worked for under one year.

For those Romanians and Bulgarian nationals, who are the parents of Irish citizen children, and who are not currently in employment, they can now commence a legitimate search for employment, and therefore must be regarded as economically active as Job Seekers under EU Law. Pursuant to Regulation 1612/68, all EU citizens have the right to move within the territory of the EU to seek employment for at least a six month period. As legitimate Job Seekers, they have a lawful right to reside. They can therefore apply to all benefits including Child Benefit and Jobseekers Allowance and Supplementary Welfare Allowance. If they becomes employed (either part time or full time), self employed, a student or financially self sufficient (with health insurance), they then trigger their “worker status”,  and the benefits as described above.

The question now to be determined is when did the Romanian/Bulgarian parents of Irish citizen children commence lawful status in the State? Was it on the 28^th February 2012, when the government implemented this change in policy? Or was it previous to this, when the Zambrano judgment was delivered? When the Treaty of the Functioning of the EU was implemented? The answer to these questions could have a signigicant conssequences for those who may have been wrongly refused accesss to social benefits. Most likely, these are questions to be determined by the Court of Justice.

ROMANIAN AND BULGARIAN PARENTS OF IRISH CITIZEN CHILDREN TO HAVE UNRESTRICTED ACCESS TO THE LABOUR MARKET

We have been informed that a Government decision was reached on the 28^th February last to permit Romanian and Bulgarian parents of Irish citizen children unrestricted access to the Labour Market with immediate effect. We understand that notice of this change will be posted on the Department of Job, Enterprise and Innovation this week.

It seems that this change in the law will be automatic, and immediate; Therefore Romanians and Bulgarian who arrived in the State from 2007 onwards and who are the parents of Irish citizen children will not be required to apply for work permits in order to be legally employed in the State. For those already in employment, they will be automatically regarded as legally employed.

The decision comes following a number of cases, which have recently been issued in the High Court to challenge the State’s policy to exclude Romanian and Bulgarian parents of Irish citizen children from the ambit of the Zambrano judgement. In one such case taken by this office, we claimed on behalf of our client that the State had acted unlawfully in failing to give preference to him, as a citizen of the European Union, over third country nationals in respect of access to the labour market in the State. Furthermore, it was argued that the State had acted unlawfully by discriminating against the applicants as families consisting of Irish citizen children with a Romanian/Bulgarian parents by treating them less favourably in respect of the parent’s access to the labour market when compared with families consisting of an Irish citizen children with a third country national parent.

We very much welcome the State’s change in position to accept that all Romanian/Bulgarian nationals, who are parents of Irish citizen children, must have full access to the Labour Market.

Brophy Solicitors

Irish Times Article - Judge tells ill South African couple they can remain in State

http://www.irishtimes.com/newspaper/ireland/2012/0225/1224312374191.html

AN ELDERLY and ill South African couple whose Irish citizen daughter and her husband had offered to allow them live with them have won a High Court order overturning the minister for justice’s refusal to allow them to live in the State.

In his judgment yesterday, Mr Justice John Cooke overturned the minister’s July 2010 refusal to grant permission to Leon (72) and Margaret (68) Lemiere to live here.

He ruled the minister’s decision did not properly take account of the constitutional family rights of the couple’s daughter, Desiree O’Leary, and her husband, and was not based on a fair and reasonable assessment of the facts of the case. The O’Learys and the Lemieres had brought the judicial review proceedings challenging the refusal to allow them remain in the State on grounds including that the decision breached their family rights.

Ms O’Leary, a UCD lecturer, and her engineer husband, Diarmuid, wanted the elderly couple to stay with them after both became ill and housebound following their discharge from hospital in South Africa in 2008.

The Lemieres lived in Durban where security was a constant and daily problem as, despite having elaborate security precautions, their home was a frequent target for burglars, the court heard.

They previously obtained temporary permissions to stay, with their last permission running up to July 31st, 2010, on condition they did not have recourse to public funds or State benefits and services.

In his judgment yesterday, Mr Justice Cooke said he was satisfied the minister had given inadequate consideration to the need for balance between protecting the applicants’ family interests under article 41 of the Constitution and the State’s interest in maintaining the integrity of immigration laws.

The crucial point was not the Lemiere couple’s right to enter and remain in the State, but the O’Leary couple’s constitutional rights as Irish citizens to look after family members within the State.

The O’Leary couple, as adult Irish citizens, and their dependent elderly parents, constituted a family within the meaning of article 41 of the Constitution and, as such, invoked the protections envisaged by that article, he held.

Those protections included the entitlement of the family to run its own internal life and affairs without interference from the State, unless such interference was justified. The judge added he found the O’Learys were open and candid in their effort to find a way to have the parents stay in Ireland.

He rejected arguments by the minister the challenge should be dismissed on grounds there was no express provision in Irish legislation for an Irish national to apply on behalf of a non-EU national who was their dependant to join them in the State. He further dismissed claims of a lack of good faith by the applicants in their dealings with the department.

The minister acted incorrectly in assessing dependency only in respect of financial grounds when dependency was argued in a much broader context, the judge ruled.#

Irish Times

25.02.12

New body of case law prohibiting Dublin 2 returns to certain Member States

Since the Court of Justice judgements in the “Greek Transfer” cases (see NS and Others v SSHD (C-411/10) and in MSS v Belgium and Greece) in 2011, Members States are now effectively prohibited from applying the Dublin 2 Regulations in order to return asylum seekers to Greece. Following on from these judgements, it is not surprising that a body of case law is now developing to challenge Dublin 2 returns to other Member States with poor records in respect of the treatment of asylum applicants.

In December 2011, we blogged about the Austrian Courts prohibiting Dublin 2 returns to Hungary due to the potential risks of a breach of Article 4 of the Charter of Fundamental Rights – which prohibits torture and inhuman or degrading treatment or punishment.  Relying on these judgements we have been able to secure an undertaking from the Department of Justice not to deport a client of this office to Hungary.

We now wish to highlight some further decisions coming from the Belgian courts which suspend Dublin 2 returns to Malta for similar reasons. The Belgian Court’s decision, of the 6^th  January 2012, found that the applicant, of Somali nationality, had demonstrated an arguable claim based on Article 3 of the ECHR that he would be subject to inhuman treatment were he to be returned to Malta and thus suspended the execution of the State Secretary’s decision.  The judgement is written in Dutch and summarized briefly in English by the UNHCR. 

Summary of Belgian court’s judgement;

The applicant had previously applied for asylum in the Netherlands, but had been returned by that country to Malta in 2010 pursuant to the Dublin Regulation.  He alleged that in Malta, he was left homeless and that, due to his failure to be provided with legal aid, his asylum request had not been properly considered.  The applicant then requested asylum in Belgium on 27 October 2011, which the State Secretary for Asylum and Migration, Social Integration and Poverty Reduction refused to examine and then ordered his renewed transfer to Malta on 21 December 2011. The applicant, who was detained and scheduled to be transferred on 9 January 2012, requested suspension of the execution of the State Secretary’s decision under extremely urgent procedure on 5 January 2012. 

Citing the report of Mr Thomas Hammarburg  - Commissioner for Human Rights of the Council of Europe – dated 9^th June 2011, the Belgian Court found that there were significant deficiencies with Malta’s detention policy regarding asylum-seekers and the living conditions in the detention centres, as well as clear shortcomings with respect to Malta’s asylum proceedings concerning legal aid and the asylum proceedings, partly caused by the detention policy. The Court found that the Belgian authorities should have been aware of these shortcomings and taken them into consideration in their decision to refuse to consider the applicant’s asylum request and transfer him back to Malta and which they failed to disprove in written pleadings.

Mr Thomas Hammarburg’s report identifies many concerns regarding Malta’s policies in respect of asylum seekers. 

Brophy Solictors

24.02.12 

Council of Europe report on situation in Malta for asylum seekers, June 2011

The Commissioner for Human Rights of the Council of Europe – Mr Thomas Hammarburg  - has recently published a report detailing the Council’s concerns regarding the situation of asylum seekers in Malta. The  report, dated 9^th June 2011, identifies the following concerns regarding Malta’s detention policy:

-         It provides for mandatory administrative detention for all arriving migrants, including asylum seekers.  The Commissioner recommended that Malta should provide for “the presumption in favour of liberty under national law, and establish a framework for the implementation of alternatives to detention.”

-         Malta has failed to comply with ECHR July 2010 judgment in Louled Massoud, which found a violation of Art 5 in relation to detention of an asylum seeker, whose claim had been rejected for almost 18 months.  The Commissioner recommended that “speedy and effective remedies” should be available to migrants to challenge their detention.

The report identified the following concerns regarding the living conditions in the detention and open centres:

-         The Commissioner noted that living conditions in open centres, where migrants released from detention are housed, vary substantially, with adequate arrangements in smaller centres that cater for some vulnerable groups (families with children, pregnant women, unaccompanied minors) and “far more difficult” conditions in the bigger centres.  The Commissioner found one such tent village in a larger centre “clearly inadequate” even for short periods of time and recommended it be closed.  He also noted that conditions had reportedly deteriorated at another complex housing vulnerable groups since the Commissioner’s visit following new arrivals from Libya. 

-         Re: vulnerable groups— the Commissioner noted that Malta’s policy of mandatory detention of members of vulnerable groups was “at variance with international standards,” which provide that such measures should only be used as a measure of last resort, and that he was concerned about the lengthy period of time unaccompanied minors and people with disabilities or serious physical or mental problems spend as a result of the lengthy procedures for establishing their vulnerability.  The Commissioner also noted that these smaller facilities that house vulnerable groups often become full so that members of these groups, including those returned from other EU countries under the Dublin Regulations often end up in the bigger centres that “are totally inadequate for this purpose.”

The report also expressed concern, with respect to legal aid and asylum proceedings, that despite some progress in this area, Malta needs to provide legal aid and improve access to case files for asylum seekers and their representatives and the motivation behind asylum decisions.

The Commissioner, who had found that the system in place to support migrants “currently perpetuates their social exclusion and leaves them at serious risk of destitution,” recommended that Malta make available financial support and social assistance to all beneficiaries of international protection in Malta, rather than limiting financial assistance to those living in the detention centres.   With respect to the Commissioner’s concern about reportedly prevalent racism and xenophobia against migrants in Malta, he recommended that the government do more in terms of developing a “robust public information strategy to favour [migrants’] local integration.”

Brophy Solicitors 

24.02.12 

High Court finds in favour of Irish citizen married couple fighting for a right of residence in the State for their dependant parents

We are delighted (and relieved!) to announce the successful outcome in the case of O’Leary and Lemiere v The Minister for Justice. You may recall our previous blog posting on this case. 

This morning, Mr Justice Cooke delivered judgement approving our clients’ application to set aside the Minster for Justice’s decision to refuse to grant permission to reside for their dependant elderly parents.  He confirmed the Minister’s decision to refuse their application for permission to reside as a disproportionate decision not based on a fair and reasonable assessment on the facts of the case.

Mr Justice Cooke dismissed the State’s argument that the applicants’ case did not trigger the protections of Article 41 of the Constitution. The High Court confirmed that the applicants, as adult Irish citizens and their dependant elderly parents, did constitute a family within the meaning of Article 41 Constitution, and as such invoked the protections envisaged by that Article. He confirmed Mr Justice Hogan’s previous findings that these protections include the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified in the interests of the individual family members or necessary in the over riding public interest. 

For the purposes of assessing the rights deriving from Article 41, Mr Justice Cooke confirmed that what is important is the context of the family relationship, as opposed to how that relationship is defined. In other words, the reality of the family situation is to be assessed.

Having accepted the O’Learys and the Lemieres constituted a family within the meaning of Article 41 of the Constitution, Mr Justice Cooke proceeded to the “central issue ” of the case - whether the reasons given by the Minister to refuse the applicants permission to reside constituted a lawful exercise of the Minister’s discretion pursuant to Section 4 (7) of the Immigration Act 2004, or whether the decision was illegal in that it was unreasonable and disproportionate or inadequately explained.

On a thorough review of the submissions made in support of the application, and the Minister’s responses, Mr Justice Cooke concluded as follows;

“It is difficult to avoid the impression given by the cumulative effect of the reasons as stated, that the decision made was more concerned with finding and articulating grounds which would support a refusal rather that seeking to give an overall assessment of the merits of the application in a balances and objective manner.”

Mr Justice Cooke assessed individually the two principle grounds for refusal of the application – (1) that there is no express provision in Irish legislation for an Irish national to apply on behalf of a non EU national who is their dependant to join them in the State, and (2) that there was a lack of good faith by the applicants in their dealings with the Department.  In dismissing both grounds for refusal, Mr Justice Cooke confirmed that it is manifestly the case that the Minister has the power in his discretion to extend any permission to be in the State granted to a non national pursuant to Section 4 of the Immigration Act 2004. He also confirmed that it was the Court’s judgment that it was highly questionable that the motives attributed to the applicants in the decision were consistent with the relevant material, describing the O’Learys as open and candid in their efforts to find a way of having the grandparents to remain in Ireland.

For these reasons, Mr Justice Cooke found that the Minister’s decision must be quashed, as it was based on justifications erroneous in law.

Mr Justice Cooke then added some further comments of note in respect of the cental issue of dependency: he found that the Minister was incorrect to assess dependency only in respect of financial grounds, when dependency had been argued on a much broader context. Furthermore, he found that the Minister was incorrect to find that financial dependency did not exist, as the financial assistance went beyond what is extremely welcome but non-essential support. Mr Justice Cooke indicated that it was the judgement of the Court that the Minister had applied an unbalanced approach to isolate the financial aspect of dependency and find dependency only to be relevant in cases of outright destitution.

We believe that this case has established important new rights for Irish citizens pursuant to Article 41 of the Constitution. In particular, it has established that adult Irish citizens have rights to have their dependant and financially self sufficient (non EEA) family members reside with them in the State, and while these rights are not absolute, they are strong enough to place a weighty obligation on the State to objectively justify any infringement of those rights.

We wish to congratulate the O’Leary and Lemiere family on their successful outcome today.

Brophy Solicitors
24.02.12

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