Case Study: Correct service of Notice of Intention to Deport

MM (Georgia) v Minister for Justice, Equality and Law Reform [2011] IEHC 529, delivered on the 19^th September 2011

The applicant in these High Court proceedings sought to challenge the validity of a deportation order made against him on the basis that there was no evidence that the applicant was ever properly served with any proposal to deport him pursuant to s 3(6) of the Immigration Act 1999.

The applicant, a Georgian national, arrived in the state at the end of 1999. The applicant’s application for asylum was refused in 2003 and he was served with notice to deport him. The applicant challenged this order resulting in a settlement under which the applicant was given permission to remain in the state until April 2010. In the meantime the applicant was convicted of theft in September 2009 and sentenced to nine months imprisonment. The central issue of the case then arose as to whether the applicant had been served with a fresh proposal to deport him on the 12^th of May 2010 whilst he was serving a sentence in Cloverhill prison. 

Section 3(6) of the 1999 Act provides that notice should be served on an individual by being delivered to them or by sending it by post or other recorded delivery service. The Minister sent the deportation letter to Cloverhill prison. The applicant maintained that he never personally received the letter. The prison authorities on the other hand gave evidence that there was a delivery docket for the letter at the prison and it was on the applicants file. The Minster was unable to show that the letter was actually delivered to the applicant in person and so failed to comply with the statutory prerequisites to validate the deportation order.

The High Court found that the Minister also failed to comply with Section 3(6)(b) under which it is necessary to show that the deportation letter was sent to the most recent address furnished by the applicant. It was established in this case that the letter was not sent to the applicant’s most recent address.

The Minster could therefore not establish that that the notice of intention to deport was ever served on the applicant in the manner required by s 3(6)(a) or s 3(6)(b). Proof of service according to the terms of these provisions is an integral feature of the entire deportation system. Given that a deportation order is of fundamental and far-reaching importance to the applicant, it is vital that there be compliance with the procedural requirements prescribed by statute. For these reasons failing to demonstrate that the applicant had been served with notice of an intention to deport in accordance with s 3(6) is so fundamental that this court could not permit any subsequent deportation order to stand. 

Brophy Solicitors

3.5.12

          

Case Study: Entitlement to citizenship upon birth of child of asylum seeker who is subsequently declared to be a refugee

B.K. (A Minor) v The Minister for Justice, Equality and Law Reform [2011] IEHC 526, delivered on the 21^st December 2011

The applicant in these High Court Judicial Review proceedings was a four-year-old girl seeking to quash a refusal by the Minster to recognise the applicant as an Irish citizen. The applicant also seeks a declaration that she is an Irish citizen and an order requiring the respondent to recognise this and to issue her with an Irish passport

The applicant’s mother, a Cameroon national, arrived in Ireland in July 2005. The Refugee Appeals Tribunal recommended that the applicant’s mother be declared a refugee. Pursuant to s 17(1)(a) of the Refugee At 1996 a declaration was signed by the respondent declaring the applicant’s mother a refugee on 12^th of February 2009. Before the applicant’s mother was declared a refugee, she gave birth to the applicant in August 2006. At the time of birth the applicants mother was residing in Ireland pursuant to s 9 of the Refugee Act 1996 allowing her to remain in the state pending determination of her application for refugee status.

The applicant’s mother now seeks to challenge the refusal of the Citizenship Division of the Department of Foreign Affairs to issue her daughter with a passport to recognise her child as an Irish citizen pursuant to s 6 of the Irish Nationality and Citizenship Act 1956. S 6(a) of this act deals with entitlement to Irish citizenship to persons born to non-nationals. An entitlement to Irish citizenship does not apply to all persons born in Ireland. One will not be entitled to citizenship in circumstances where the parent of the child has not been resident in Ireland for an aggregate period of three years out of the last four years or if one of the parents was not entitled to reside in the state due to restrictions on their period of residence.

The respondent submitted that the applicant’s mother did not have the appropriate number of years reckonable residence in the state prior to the birth of the applicant as she had only been in Ireland for over a year. The central issue for determination is whether the applicant’s mother was entitled to reside within Ireland without any restriction as of the applicant’s date of birth at a time when she was not yet a declared refugee.

The applicant contended that her mother did not have any restriction on her residence in the State given that the proper reading of s 9(2) of the Refugee Status Act 1966 meant that leave to remain in the state is without any restriction and that a restriction would only arise in respect of her mother's residence if one of the three events outlined in s 9 occurred.

The respondent submitted that not only did the applicants mother not have the appropriate years reckonable residence in Ireland prior to the birth of the applicant but that her residence was also restricted as of the applicants date of birth and remained so until she obtained a declaration of refugee status.

The Court was satisfied that a correct reading of s. 9 of the Refugee Act 1996 meant that as of the date of the applicant's birth, the applicant's mother was only entitled to remain in Ireland for the purpose of ensuring a final determination of her application for refugee status. This meant that that there was a restriction on her period of residence within the state. This restriction remained in force until the date upon which she was declared a refugee and was therefore in force as of the date of the birth of the applicant.

In the light of the above findings the Court was satisfied that the correct construction of the legislation results in a situation where the applicant's mother was a person whose right of residence within the State was restricted as of the date of birth of the applicant and that therefore the applicant does not have an entitlement to Irish citizenship.

It should be pointed out that the applicant is lawfully within the jurisdiction and will be entitled to apply for a certificate of naturalisation in her own right as and from her fifth birthday which occurs on the 30^th August, 2011.

The EU Commission Requests the UK State to comply with EU Free Movement Law

Each Member State is responsible for the implementation of EU law. Usually this requires the adoption of an implementing measure before a specified deadline, or the correct application of measures already adopted within that Member States own legal system. 

Under the Treaty on the Functioning of the European Union (Article 258) the Commission of the European Communities is responsible for ensuring that EU law is correctly applied.  When a Member State fails to comply with EU law, the Commission has powers (called action for non-compliance) to bring the infringement to an end and, where necessary, may refer a case to the European Court of Justice. The non compliance may consist either of action or omission, and it may be any authority of the State which is responsible for the infringement, including central, regional or local.

A letter of formal notice is the first stage of the Commission’s non compliance procedure, in which the Commission requests a Member State to submit its observations on an identified problem regarding the application of EU law within a given time limit. The Commission may then serve a reasoned opinion on the Member State to set out the Commission’s position on the infringement and to request the Member State to comply within a given time limit. Referral by the Commission to the Court of Justice would be the final step in holding a Member State accountable for on going breaches of EU Law.

On the 6^th  April 2012, the European Commission has served on the United Kingdom a reasoned opinion, which outlines the current breaches of EU Free Movement Law actively being pursued by the UK State. The opinion includes a formal notice that the UK has two months to mend it’s hand and comply with European Union rules on the free movement of EU citizens and their families across the EU. The breaches of EU Free Movement Law that are addressed in the Notice are summarized by the Commission as follows (See Commission's press release here );

“The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.

The United Kingdom does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.

Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.

Finally, the United Kingdom does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the United Kingdom to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.”

In comparing the position in Ireland, we would submit that this State is actively infringing the EU law rights indicated in the first, second paragraphs above. We suggests that where an individual in this State has their EU Free Movement rights breached, they should submit a written complaint to the EU Commission (contact details for the Dublin Office here) and thus similar action may be followed against this State. 

Brophy Solicitors

1.5.12

Ahmadiyya Community: Advocate’s General opinion in joined cases of the European Court of Justice; C-71/11 and C-99/11, Bundesrepublik Deutschland v Y & Z

According to Advocate General Bot, a serious infringement of the freedom of religion may constitute an act of persecution where an asylum seeker runs a real risk of being deprived of his most fundamental rights by exercising that freedom. This would be the case where he risks death, inhuman or degrading treatment or of being prosecuted or imprisoned arbitrarily.

The German Federal Administrative Court asked the Court of Justice to set out the circumstances in which an infringement of the right to freedom of religion and in particular of an individuals right to live his faith freely and openly may constitute an act of persecution within the meaning of the directive. This reference arose from a dispute between the German authorities and two Pakistani asylum seekers who are active members of the Ahmadiyya community. This is an Islamic Reformist Movement that the Sunni Muslim majority in Pakistan have long contested and their religious activities are severely restricted by the Pakistan Penal Code. They are unable to profess their faith publicly without their activities being considered to be an act of blasphemy, a charge punishable by imprisonment or even the death penalty.

Directive 2004/83/EC seeks to establish common criteria for all of the member states to recognise the refugee status of asylum seekers within the meaning of Article 1 of the Geneva Convention. Advocate General Bot expressed his opinion that the aim of the common European asylum system is limited to an individual who may be exposed to persecution in his county of origin, which is classed as a serious and intolerable attack on his person and his indefeasible rights. 

Advocate General Bot set out the fundamental nature of the freedom of religion and rejected the idea that only a serious interference with the freedom to manifest one’s religion in private may constitute an at of persecution. The freedom of religion is subject to certain limits in order to maintain religious pluralism and the peaceful coexistence of different beliefs. Certain prohibitions may carry criminal penalties once the penalties are proportionate and determined in compliance with individual liberties. A serious infringement of the freedom of religion may constitute an act of persecution where the asylum seeker runs a real risk of being treated unjustly.

The AG was of the view that the prohibitions in Pakistani law in relation to the situation of the members of the Ahmadiyya community in Pakistan are likely to constitute a serious infringement of the freedom of religion. The penalties may constitute persecution because they aim to deprive any person of his most basic rights if they persist in publicly manifesting their faith by threatening them with imprisonment or death.

The authority responsible for examining an asylum application cannot reasonably expect the applicant to renounce his religious activities to avoid persecution. This would deny him a basic right guaranteed by the convention and also deprive the directive of its effectiveness since it would not protect a person who is exposed to acts of persecution.

Brophy Solicitors

27.04.12 

Case Study: Third Country Nationals who are Long-Term Residents in a EU Member State have the Equal Right to Social Assistance as EU Citizens

It was recently decided by the Court of Justice of the EU in the case of Servet Kamberaj v Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano that EU member state’s are prohibited from implementing legislation which treats third-country nationals who are long-term residents different from EU citizens in relation to the allocation of funds for housing benefit.

The facts of the case are as follows. Mr Kamberaj is an Albanian national who has resided in Italy since 1994. He received housing benefit in Italy from 1998 to 2008 as a holder of a residence permit. This housing benefit was administered by firstly being allocated to EU citizens and then secondly awarded to third country nationals who have lawfully resided in the state for at least five years and worked there for at least three years. However, in 2009 a different method was put in place to allocate funds. The Social Housing Institute of Bolzano then rejected Mr Kameraj’s application under this new method on the grounds that the benefit intended for third country nationals had been exhausted.

Mr Kameraj’s brought a case on the grounds that this refusal amounted to discrimination contrary to Directive 2003/109/EC in relation to third country nationals who are long-term residents. The question of whether this method of allocating housing benefits was discriminatory was then referred to the Court of Justice of the EU.

The court was of the view that this method of allocation would disadvantage third country nationals in being allocated a smaller budget even though they have the same economic needs as those of an EU citizen. The court considered the scope of the directive in relation to social security, assistance and protection. The court found that these aspects of the law fell within the scope of member states to determine and they are permitted to limit the application of equal treatment in respect of social assistance to core benefits. Core benefits must be provided equally to those resident in the state including third country nationals who are long-term residents. The directive does not contain an exhaustive list of core benefits. Therefore housing benefit falls within this list as it relates to the basic need of the individual to accommodation and equal treatment must be applied here.

The right of third country nationals to equal treatment is a general rule and any derogation must be interpreted strictly. The scope of the term core benefits must be interpreted to take into account the objective of the directive to ensure the integration of third country nationals. The Charter of Fundamental Rights must also be considered to determine the scope of core benefit. The Charter recognises such a right to housing assistance to ensure a decent existence for those who lack sufficient resources.

In light of the considerations outlined, the court concluded that EU law precludes a national or regional law which provides for different treatment for third country nationals and nationals of the member state in which they reside, in so far as the housing benefit falls within one of the three fields covered by the principle of equal treatment provided under the directive concerning third-country nationals who are long-term residents and constitutes a core benefit within the meaning of that directive, which are matters for the national court to determine.      

You can read the full judgement here http://curia.europa.eu/juris/document/document.jsf?text=&docid=121961&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1432923

Brophy Solicitors

26.04.12

Naturalization Delay

We continue to receive a large number of queries from clients regarding the on going delays in the Citizenship Section. It is very appararent that many applications submitted in 2007 continue to be undetermined. Amongst our clients in this catagory are a number of doctors, and a client working in the financial services. There is no apparent reason for the delay on the facts of their cases. Our clients are frustrated, particularly as they feel they have given a lot to this State through their professional services. 

The amount of new queries recently received on this issue warants a further posting on our blog. We think that it might be helpful for those who are stuck in this waiting game to understand the caselaw coming from the superior courts, which greatly influences the Naturalization processs.

In most applications before the Minister for Justice, a processing period of 6- 12 months would be regarded as reasonable, while a period of over 18 months would be deemed to be unreasonable and in breach of the applicant's rights. However, during 2009 and 2010, a number of cases before the High Court held that the Minister was not restricted in the time period for processing Naturalization applications because the granting of Citizenship is a special privilege granted by the State, and not comparable to other applications for residency. Thus, the applicants who took the delay cases during that period were unsuccessful. (See cases such as Nawaz v Minister for Justice, 19th July 2009, Bepo v Minister for Justice, 18th June 2009, Tabi v Minister for Justice 16th April 2010, Jiad v Minister for Justice 19th May 2010 and Abuissa v Minister for Justice,1st July 2010 ).

Since then, the Citizenship Section of the Department of Justice has relied on these High Court judgments to support their position that they are permitted to allow extremely long delays in the determinations of many applications for Naturalization. Unfortunately, Immigration lawyers were hesitant to challenge the delays by way of High Court litigation because of the risks posed to their clients becuase of these same unsuccessful High Court judgements in 2009/2010.

On the 16^th December 2011, Mr. Justice Kearns of the Supreme Court delivered a judgment which changed this position – the case is Dana Salman v Minister for Justice and Equality. The case involved a hearing to establish liability for costs in respect of one of the previous High Court Naturalization delay cases. The Minister’s delay in determining Mr Salman’s application for naturalization was 3 years and 9 months at the time of issuing of High Court proceedings. Mr. Justice Kearns found that there was no evidence before the Supreme Court of any system in place for dealing fairly with applications for certificates of naturalisation. In particular, the Minister did not indicate any specific reasons for the delay and refused to explain the extended period of delay past the average time put forward by the department (24 months). Mr. Justice Kearns held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded. (Please see our previous blog post of December 2011to read further about this judgement).

Since the Salman judgement, a number of new Naturalization delay cases have recently been issued in the High Court, where the delay is in the region of the Salman case – 3 and ½ years. The High Court is granting permission to take a full case against the Department of Justice where there is substantial delay of this kind. It remains to be seen if one of these more recent cases will proceed to full hearing, and perhaps set a new precedent in light of the Salman case.

We will keep updating you as further developements occur.

Brophy Solicitors

Political Support for Undocumented Migrants in Ireland.

The annual Labour Party conference took place on the 15^th of April 2012. At this conference the Labour party put forward a motion to support the regularisation of undocumented migrants in Ireland. The conference noted that there is an estimated 30,000 undocumented migrants residing in Ireland today and recognised the undue strain and hardship this caused to these individuals and their families who remain in constant fear of deportation. Many of these families live in poverty as they cannot benefit from basic social services such as health and education. The conference also recognised the isolation they experience within the state, as they are unable to return home to visit family members and friends in their home country, as they fear they risk being unable to return to the state afterwards.

The conference proposed putting in place an Earned Regularisation Scheme. This would involve undocumented peoples being given an opportunity to earn permanent residency over time by adhering to a specified criteria such as working and paying taxes. This would confer benefits both on state and on the undocumented persons by encouraging economic and social integration.            

The Migrants Rights Centre Ireland welcomed this motion by the Labour Party. "This is a very significant step in realising the human rights and dignity of undocumented men, women and children living in Ireland. The passing of this motion recognises that undocumented people are rooted within our communities and demonstrates a commitment to protecting the most vulnerable" said Edel McGinley of the MRCI.

Brophy Solicitors welcomes any initiative moving to recognise the rights of the undocumented worker in Ireland and we appreciate and praise the commitment of the MRCI towards the protection of undocumented workers in the State.

Brophy Solicitors

18.04.12

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