Best interests of the child considered – UK Court of Appeal

Case Study: SS (Sri Lanka) v Secretary of State for the Home Department (Court of Appeal UK)

The Applicant is a Sri Lankan woman of Tamil ethnicity. Her husband worked as a counsellor for Tamil victims of rape and abuse perpetrated by the  Sri Lankan authorities.  The Applicant claimed that her home was raided by the army on 17^th December 2010.  She was raped during the raid and her husband was abducted. After receiving  hospital treatment, she fled to the United Kingdom with her two children, and they claimed asylum in January 2011.

The Applicant’s initial claim for asylum was refused, and was unsuccessful on appeal.   Since the attack she suffered post traumatic stress disorder and depression, as well as increased anxiety, inability to concentrate, and flashbacks of the incident. She was also discovered to be suffering from advanced breast cancer.

Where  the first Tribunal has made an error in law, the judge can in certain cases allow a second appeal which was permitted in this case. Firstly, the judge held  that the original appeals trial judge had hastily dismissed the medical evidence presented in respect of  the Applicant’s poor mental and physical health. Secondly,  the Tribunal failed to consider the best interests of the children, as was necessary following the judgement in the case ZH (Tanzania v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 A.C. 166.

The Court in this case needed to balance the interests of the children in allowing the Applicant to remain in the State with the evidence pointing towards her removal. They allowed that the previous Tribunal’s failure to consider the interests of the children constituted an error of law, but that had the previous tribunal considered the interests of the children, the outcome would have remained the same.

The Court considered whether the Applicant’s  removal from the State would violate her rights under Article 8 of the European Convention of Human Rights. It was held that there would be no violation of Article 8, because the children would leave the State and travel back to Sri Lanka with their mother, hence preserving their family unit.

The Court also found that the interests of the children would not be harmed upon their removal to Sri Lanka. They had not established roots in the State nor had they formed any semblance of a stable private life and so their social circumstances would not be affected. Their mother was in poor health, which could pose problems, but there is no evidence that the Applicant could not receive equivalent medical treatment upon her return to Sri Lanka. Although the Tribunal was held to have unfairly discounted medical evidence, the Court held that a more careful consideration of the medical evidence would not have changed the ultimate decision of the Court.

The safety of the Applicant is ultimately linked to that of her children.  After the attack, her husband was abducted by the army, and she has had no further contact with him. Since her husband’s activities were the catalyst for the attack, the Court concluded  that she and her children were  in no further danger if they return to Sri Lanka.

The appeal was ultimately dismissed because the core of the previous opinion had not changed. If the Applicant was removed to Sri Lanka, she and her children would face no significant danger. Since the violence she encountered was a direct result of the activities of her husband, and he is no longer an active member of her life, upon her return to Sri Lanka, she would be able to maintain her family life and obtain adequate medical treatment.

Brophy Solicitors

http://www.bailii.org/ew/cases/EWCA/Civ/2012/945.html

New Irish programme supporting child asylum seekers; RIPN materials on PILA website

The latest PILA bulletin from 25^th July includes an article that discussing the rights of child asylum seekers. The Minister for Children has introduced a program entitled “One Good Adult” that will help ease the transition into living in Ireland for child asylum seekers. Each child will be paired up with an adult, who will act as a mentor for him or her and assist them in adapting to life in the State. The report quotes Tanya Ward, stating that, “separated children are alone in Ireland without love, care and solidarity from their families. This project provides them with a person who will walk with them every step of the way on their journey through the care and asylum process ensuring their best interests are taken into account and their voices are heard.” This program is exciting because it will mean that there are less bereft migrant children living in the state with no one to look out for their interests.

Also, the Immigrant Council of Ireland (ICI) has called for a reform on immigration processes that affect children. The number of migrant children in Ireland is growing significantly, and the immigration and education systems are not adequately equipped to deal with the needs of this growing group. The ICI specifically called for a reform of immigration policies, a review of current tuition fees, and schemes targeted and eliminating xenophobia and racism.

Work visas not working for tech sector

While most industries in Ireland are stagnant or declining, the technical sector is experiencing surprising growth, reports an article in the Irish Times from Monday, 23^rd July 2012. There is an increased need for highly skilled technical workers, but the graduates from Irish universities are not sufficient to fill the demand. Companies are attempting to fill the vacant jobs with international workers, but they’re experiencing trouble with the bureaucratic element.

In Ireland, workers are given a green card, which allows them to obtain a visa to work in the State. The green card scheme is designed to recruit highly skilled workers to fill specific voids in various industries in Ireland. In order to obtain a green card, however, the worker must already have a job. In the time it takes to process the paperwork, the worker might not be available anymore. Smaller firms especially have a difficult time with the bureaucratic process, considering that many of them do not have an HR representative.

Most of the EU operates under a blue card scheme, which is an easier process. A blue card allows a highly skilled technical worker to enter into the EU and work in the region, allowing for a greater flexibility and mobility. Most of the EU already operates under this system, with Germany set to implement it on 1^st August. However Ireland, along with the UK and Denmark, has not participated yet.

Zartis is a software recruiting website, and John Dennehy, an employee, commented on the situation. He said, “If you brought in 10,000 people with computer science degrees, they would all have jobs within two or three months. Companies are crying out for those skills. We don’t have enough people in Ireland. They’re not going to take anybody’s jobs, because they are vacant.” His speech highlights one of the top concerns that governments face when bringing in international workers. A government does not want to handicap its own industrial sector by allowing international workers to arrive that might steal the work from Irish nationals, but Dennehy’s point is that the jobs are vacant anyway. People have expressed concerns that open borders might be taken advantage of, but for right now, the negatives are outweighed by the benefits.

Brophy Solicitors

24.07.12

http://www.irishtimes.com/newspaper/finance/2012/0723/1224320622064.html

Refusal of refugee tribunal to grant refugee status a 'breach of fair procedures'

An article in the Irish Times from Thursday, 19^th July 2012, reports that the High Court quashed an order refusing a Kosovan man refugee status. Mr Justice McDermott ruled that the case should be returned to the Refugee Appeals Tribunal to be reheard.

The man is a member of the minority gypsy Ashkali group, and he claimed in court that he was shot in the leg by Albanians outside his home in Kosovo in a racially motivated attack. The court denied him the ability to present medical records detailing the injury he acquired in the shooting on the grounds that his account of the shooting was implausible. He was not granted refugee status, and he appealed that decision to the high court.

Mr Justice McDermott ruled that this was a breach of fair procedures, and that the Refugee Appeals Tribunal was required to wait until the “expiration of a period allowed for the furnishing of medical reports” in order to refuse the documents.

Brophy Solicitors

24.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0719/1224320380859.html

Debunking the myths about international student migration

An article from the UK Guardian on 20^th July 2012 engages in a discussion about the benefits of having international students study at universities in the UK. Foreign students studying in England have been the topic of much controversy and debate, and the author of this article aims to put these arguments to rest.

He begins by debunking three common myths about foreign students. First, he says, foreign students are not taking the place of home students. They are evaluated for acceptance in completely different systems, and there is a cap on the number of UK students admitted to any university, so UK students are never competing for spots. Second, he addresses the myth that foreign students arrive in the UK, soak up knowledge, and then leave without contributing anything back. The author argues that the presence of global perspectives in a classroom is a valuable learning experience for home students. The third myth, and arguably the most common, is that international students will continue to arrive to study in the UK. There are new competitors seeking international students, namely the United States, Canada, and Australia, and the UK will have to work to make sure that international students continue to choose British universities. Already, international students only comprise 13% of the student body, and if international students feel as though their presence is unwelcome, they might seek their education in a different country. It is widely accepted that international students greatly benefit the classroom, they are an important part of the economy, and they foster beneficial relationships between countries, so the UK would benefit from making sure that international students continue to come there to study. The author concludes by saying, “We are convinced now more than ever that the international dimensions of higher education are central to the wellbeing and prosperity of the UK.”

Brophy Solicitors

23.07.12

http://www.guardian.co.uk/higher-education-network/blog/2012/jul/20/myths-internationalisation-higher-education

Lack of Legal Advice given to Illegal Immigrants

In an article in the Irish Independent last Tuesday, the 10^th July, the author describes how many illegal immigrants detained in Northern Ireland are not receiving proper legal council. Reports have shown that the number of people being detained has risen by almost 75% since the stricter border patrol enforcement, known as Operation Gull, was introduced six years ago. While many of those detained are illegal, thus making it within the rights of the state to deport them, a good number have legitimate claims to stay in the state, and they are not receiving proper legal representation to ensure that their rights are being recognized. They arrive without intending to break immigration laws; they have legitimate reasons for wanting to come to the UK. They just lack the language, agency, and voice to make their situations known on a legal stage.

Not only that, but there is a growing concern of ethnic profiling at these ports of entry, and that many people who are being detained without consideration of their situation are being denied their rights because of their ethnicity.

Brophy Solicitors

18.07.12

http://www.independent.ie/breaking-news/national-news/concern-at-illegal-immigrant-advice-3165580.html

Deportation Order for a Chinese National

An article in the Irish Times from Wednesday, 18^th July, reported that a Chinese national, Qing Wu, had lost his High Court challenge. He had received a deportation order in 2009, but he had changed addresses without notifying the Minister, so his notices went unread. He attempted to challenge the deportation order, owing at least in part to the fact that he has an Irish-born child and part because he had not received the deportation orders, but the case was ultimately unsuccessful. The onus was on him to notify the Minister if his circumstances changed. The author reports that by the time the case came to be heard before the High Court, Mr Wu was on a plane to Frankfurt, where he will be further escorted to Beijing.


Brophy Solicitors
18.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0718/1224320307476.html

Médecins Sans Frontières (MSF) Ireland Event for Next Wednesday on Refugees in South Sudan

News coverage has demonstrated that the condition in South Sudan has worsened as we approach the one year anniversary of its secession from Sudan. Médecins Sans Frontières (MSF) Ireland is hosting a free event on 18^th July at the Royal Irish Academy, Academy House, 19 Dawson Street, Dublin 2 at 6.30pm. This event will address the growing refugee crisis in South Sudan, accompanied with photographs and highlights of MSF projects. Jane-Anne McKenna, head of the MSF Ireland office, has just returned from nearly a month in the region, and she will comment on her experience, as well as the work that MSF has done there, and hopes to achieve in the future. The event promises to be a powerful statement on the lives of refugees, and interesting to observe from an immigration standpoint. Many immigrants from East Africa are arriving in Ireland to seek asylum, and it is important to understand where they have come from.

The event is free, but donations will be accepted for the South Sudan Emergency Appeal. For more information, please visit: www.msf.ie/south-sudan-appeal.

http://www.activelink.ie/node/9553

Brophy Solicitors

12.07.12 

Immigrant Council of Ireland calls for a reform on immigration policies that affect children

In an article published in the Irish Times on Monday, 9th July, the ICI released a report where it mentioned concerns specifically regarding migrant children. One in seven children in Ireland is an immigrant, and the needs of this growing group must be addressed. The stigma on this group could have a detrimental effect on their emotional, social, and cultural well-being.

Many of these children have grown up in Ireland, and have rooted themselves well in Irish society, speaking fluent English, receiving high marks in school, and establishing a wide network of friends and peers. They are required, at the age of sixteen, to obtain a GNIB identification card, clearly establishing them as different from their peers, and costing up to €150. This card must be presented whenever requested, and often prevents students from acquiring after school employment or participating in extra curricular activities.

Not only does the GNIB identification card cost €150, but if a migrant student has not been naturalised to become an Irish citizen by the time she is ready to go to college, she faces the risk of being charged international student fees. These costs are exorbitant and often well outside of the means of immigrant families.

The article stresses how disruptive and upsetting these bureaucratic measures can be on a young migrant, and calls for  reform as soon as possible. Not only does the ICI call for a closer look at the tuition fee structure and the immigration laws in general, but the Council believes that preventing racism, xenophobia, and negative social stigmas is crucial to assisting migrant children’s full integration into Ireland.

Brophy Solicitors

11.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0709/1224319635283.html

Testing times for citizenship exam as Conservatives seek overhaul

An article in the Irish times today, entitled “Testing times for citizenship exam as Conservatives seek overhaul” discussed the nature of the UK citizenship exam.

Despite insistence that history questions would prove to be unfair, considering the fact that many UK citizens by birthright wouldn’t be able to answer the questions themselves, Conservative home secretary Theresa May insisted that questions that concerned England’s history were important, because it would clue in the immigrants about what type of culture they were attempting to join. There is a high success rate on the citizenship test among English-speaking applicants, such as those from New Zealand, Canada, and the United States. Applicants from non-English speaking countries, such as Turkey, Bangladesh, and Afghanistan, had nearly a 50% success rate, but this is nothing compared to what Bernard Crick, drafter of the first UK citizenship test, fears for his fellow countrymen. “Could any test for immigrants be devised that 80 per cent of our fellow citizens would not fail?”

He raises an interesting point. Should the test be tailored specifically to be easier for those more unfamiliar with British culture? Or should more specific details be included, because the UK does not want naturalized citizens who don’t know the answers? The article mentions how Channel 4 put out some of the questions to viewers, and the results were  dismal.

It appears May is reacting to a fear of British culture being usurped by the culture of the incomers. “Immigrants must integrate,” the article boldly states. The UK has a history of sheltering those who need it, and critics believe that this tolerance has been exacerbated by immigrants who would come in and demand that England accommodate their culture, instead of the other way around. At the end of the article, frustration at an apparent injustice was evident. “Local authorities have bent over backwards to translate documents into several languages, while Christians have been admonished, or worse, for wearing crosses at work.” The point is this: why is it at once okay for an aspect of a foreign culture, the language, to be recognized, but those who try and demonstrate an aspect of English culture, Christianity, aren’t tolerated?

Brophy Solicitors

06..07.12 

DEPENDANT PARENTS ON EU NATIONAL

We are very pleased for our client who received a positive decision in his application or his elderly dependent parents to join him in the State.  A UK national, our client has been working in the State for a number of years.  He was able to provide evidence to show that both parents in India were dependent on him.   Such applications have always proven difficult to make and the majority of clients come to us to challenge negative decisions they receive on their applications for family members to join them where they must show proof of dependency.  It is worth noting that the ECJ has determined that dependency includes both financial and emotional dependency and accordingly supporting documentation and evidence to document both types of dependency should be considered.

Brophy Solicitors

02.07.12

World Refugee Day

Today we empathise with the plight of millions of refugees across the world, the majority of whom reside in conditions of destitution in the developing world. We also take this opportunity to remember that the asylum procedures and plight of refugees in our own country are far from perfect.

As Sophie Magennis of UNHCR argues in her opinion piece  in the Irish Times today, Ireland must introduce a single decision-making procedure for asylum applicants. This will go a long way to reduce the currently intolerable delays and hardship experienced by applicants.

Ireland is unique across Europe for having a two step administrative procedure to the determination of claims for protection. Firstly the asylum application is determined, and only after this is determined, can an application for subsidiary protection be made and decided upon. Such a two stage process creates unacceptable delays for vulnerable applicants. Asylum seekers have to reside in ‘direct provision’ accommodation for up to three or four years while their applications are being considered. It also creates a considerable expense for the State since applicants are forbidden from seeking employment until their applications are decided and therefore rely on very minimal financial support from the State while they wait.

We have clients who have waited upwards of six years to have their claims finally determined. Several of these are from counties such as Somalia, where there is widespread conflict and a pressing need for the applicant to be able to live in safety and security.  Such delays should not be tolerated. They create unnecessary hardship for the applicants and wasteful expense to the State. A ‘single procedure’, as advocated for by UNHCR and the IrishRefugee Council , would go a long way to resolve matters and ensure that the decision-making process is more streamlined, efficient and humane.

Brophy Solicitors

20.06.12  

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12

European Commission Report on Immigration and Asylum

The European Commission last week published its annual report  into immigration and asylum in the EU. This is the third year the Commission has reported on this area, responding to a request from the European Council to track the main developments at EU and national levels.

To be welcomed are the positive public attitudes towards the protection of asylum seekers and internal migration within the EU and the overall conclusion of the report that migration is essential for the enhancement of the EU, despite current economic recessionary pressures.

With respect of asylum, in the year 2011, the EU experienced an increase of 16.2% in asylum applications. The report notes that this increase reflected the dramatic events of the Arab Spring. In terms of public attitudes towards those seeking asylum, a sizeable 80% of those polled believe that EU Member States should offer protection and asylum to those in need.

The report identifies the achievement of a Common European Asylum System in 2012 as a key aim of the EU. However, to the outside observer, conflicting political priorities and standards across EU Member States appear to make fulfilment of that goal a long way off. Indeed, a recent opinion piece in the Irish Times by Sue Conlon of the Irish Refugee Council notes the serious shortcomings and disparities in our own asylum appeals system.

With respect of migration within the EU, 67% of those polled for the report that travelling within the EU without internal border controls is important to them. The report highlights that Schengen, as an area without internal border controls, is one of the principal pillars of the EU and has facilitated travel for over 400 million Europeans in 26 countries.

The report is careful to place the EU's migratory situation in the wider global context, noting that just 9.4% (around 20.2 million) of the world's migrants are third-country nationals residing in the EU.

Overall, the report reflects our own view that migration can be an enriching experience for EU Member States. Indeed, the report found that public attitudes towards migration and asylum are generally positive. As the report concludes: “Migration is and will continue to be an essential enhancement for the EU, not only in economic terms, but also in respect to the social and cultural aspects of our societies. Understandably, it has also contributed to certain perceptions which need to be aired through open and balanced debates, not dominated solely by anti-immigration rhetoric. Whilst the downsides of migration are often widely reported, one should not forget the positive contributions that migration brings and will need to bring in order for the EU to grow and continue to thrive.”

Brophy Solicitors

03.06.12 

Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

M.T.T.K (Democratic Republic of Congo) v Refugee Appeals Tribunal & Ors [2012 IEHC 155]

This case concerned an application for judicial review in respect of a decision by the Refugee Appeals Tribunal, affirming a recommendation by ORAC, not to grant the applicant refugee status.

The applicant claims to be a national of the Democratic Republic of Congo. He applied for asylum in February 2006 based on his fear of persecution arising from his race, political opinion and membership of a social group. He alleged that he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having Rwandan connections. The applicant claimed he was jailed and tortured by the DRC authorities in 2004 for purportedly supporting the Rwandan Government. The applicant escaped to Rwanda but was arrested for having no documents and was detained until January 2006. He then travelled to Ireland where the ORAC refused him refugee status in December 2006 and the RAT rejected his appeal as they did not believe his narrative.

Hogan J granted leave on a number of grounds that centred around three issues:

     (1) Risk of persecution based on ethnic origin or perceived connections to Rwanda.

It was clear to the tribunal member that the applicants alleged ethnicity was a distinct and separate point warranting individual consideration. The tribunal member failed to weigh the merits of the claim and the applicant’s lack of credibility did not justify this failure.  An ambiguity does not suffice as evidence of acceptance of ethnicity or Rwandan affiliation.  However, the court went onto conclude that in any case this matter ought to have been considered by the RAT and their failure to do so meant the decision could not stand.

  

     (2) The risk arising to the applicant by virtue of his position as a failed asylum seeker.

The High Court held that the RAT failed to consider this issue. It was expressed in previous case law that failed asylum seekers are not members of a social group and so particularly cogent evidence is required to quash an RAT decision on this issue. The court considered a number of documents in examining the credibility of the applicant’s evidence. Although some documents appeared one-sided and unsubstantiated, a UNHCR article did state that failed asylum seekers are at risk upon their return to DRC by virtue of their ethnicity. The failure of the RAT to adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining to examine the consequences of being returned to the DRC as a failed asylum seeker was of such a nature to warrant setting aside the decision in this case.

    (3) Benefit the applicant is entitled  to derive from the South African immigration system by virtue of his marriage to a citizen of that country

The High Court agreed wit the tribunal that it is questionable that the applicant never attempted to seek asylum in South Africa, given his marital connections to that country. The court held that the tribunal member went far beyond the question of the applicant’s credibility when he made a number of assumptions about South African immigration law, without supporting these conclusions by reference to the law or policy of South Africa. The applicant may be entitled to such benefit but there is nothing in this decision to support this proposition nor was it put to the applicant. The court therefore cannot presume to rely on this decision and so the conclusion was unreasonably made.

On the basis of these three grounds the High Court granted the applicant an order of certiorari quashing the decision of the RAT, remitted the matter for rehearing and to hear submissions in relation to an injunction restraining the respondent from denying the applicant refugee status and deporting him.     

Brophy Solicitors

30.05.12  

Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

Case Study: Sivsivadze & Ors v Minister for Justice and Equality & Ors [2012] IEHC 137

The applicants in these judicial review proceedings sought to challenge a decision by the Minster to refuse to revoke a deportation order made in respect of the fourth named applicant, Davit Arabuli.

The principal ground for this application is that s 3 of the Immigration Act 1999 is unconstitutional as it imposes a lifelong ban on a person subject to a deportation order, which amounts to disproportionate interference with the applicant's right to family life under article 41 of the Constitution. The constitutionality of s 3 has never been challenged before. The applicants also sought a declaration of incompatibility pursuant to s 5(2) of the European Convention of Human Rights in that allowing for a deportation order of indefinite duration violates the applicants right to family life under article 8 of the Convention.

The fourth named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who used the alias Datia Toidze, was refused asylum and a deportation order was issued in respect of him in December 2001. He failed to report to the GNIB in respect of the order and was classified as an evader. Mr Arabuli managed to remain present in the state until November 2011. In the meantime Mr Arabuli began a romantic relationship with first named applicant in 2003. Their first child was born to them in April 2005 and their second child was born in August 2009. They married in July 2009. Their children are not classified as Irish citizens.

Mr Arabuli made a number of applications to revoke his deportation order during this time but the deportation order was affirmed. In October 2011 the applicant was arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli admitted that the name Toidze that he had been consistently using throughout his time within the state was simply an alias. The applicant was deported in November 2011.

Under s 3 if a deportation order is made, it must be for an indefinite duration save that the Minister can revoke the order pursuant to s 3(11) at any time. The real question is whether the existence of a sanction that is potentially life long in duration is essential in circumstances where the applicants have real and substantial ties with the state

The European Court of Human Rights regards deportation orders of unlimited duration as raising serious Article 8 issues. The grant of humanitarian leave to Ms Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to go back to Georgia. The Minister’s decision acknowledged that implementing the deportation order would not be in the best interests of the two children, but failed to expressly weigh it in the balance. The High Court noted previous decisions in which it was stated that such an order of unlimited duration was an overly rigorous measure.

Overall the High Court found that the applicant made out substantial grounds that the application of a deportation order of potentially indefinite duration would infringe Article 8 ECHR, especially having regard to the circumstances of this case.

On the constitutional question, the court applied the three-pronged test of proportionality propounded by Costello J in Heaney v Ireland. Firstly, legislation that provides for the deportation of persons who have abused immigration laws through deception is connected to important state interests. Secondly, while the deportation order did impair the Article 41 rights of the other family members, it is recognised that it is not possible to have effective control of immigration without the sanction of deportation. The third limb requires the court to consider whether the effect on rights is proportionate to the objective. The question is whether the states interests in effective immigration law requires that a deportation order have indefinite effect.

The High Court found that the applicants raised substantial grounds in respect of both the Constitutional and ECHR grounds in the manner indicated and granted the applicants leave.   

Brophy Solicitors

23.05.12 

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

Unsuccessful Citizenship Application Relying on Zambrano and Common Travel Scheme

Case Study: Jun Yang Zou v Secretary of State for the Home Department [2012] CSOH 78

This case involved the judicial review of a decision of the Secretary of State to refuse the applicant a residence card. The applicant also sought a declaration that she has a right of residence in the UK. 

The applicant, a Chinese national, arrived in the UK in December 1998 with leave to enter as a student until June 2005. The applicant married her partner who arrived in the UK with no valid leave to enter in 2003 and two children were born to them in 2003 and 2007. In May 2011 the applicant applied for a residency card from the UK Border Agency that was refused in September 2011. The applicant now seeks to challenge this refusal.

The basis of the applicant’s claim is that her first son was born in Northern Ireland and so should be viewed as both an Irish and European Union citizen. The applicant’s son had never been to Ireland, but did possess an Irish passport and so the applicant claimed he should be viewed as a EU citizen. It was acknowledged that neither the applicant nor her husband had a right of residence in the UK and that neither of her children acquired British citizenship by virtue of being born there

The applicant relied on the Zambrano decision in claiming that in order for her son to continue to obtain the benefits of the European Union it was necessary for residence and working rights to be granted to the family. The ECJ decided in Zambrano that Article 20 of the TFEU conferred the status of EU citizen on every person holding the nationality of a member state. In distinction with Zambrano, the applicant’s child was not a national of the country for which a right of residence was being made.

The respondent submitted that the Secretary of State’s decision was a correct interpretation of the case. This decision was made on the basis that the applicant’s circumstances did not fall within the scope of Zambrano as the applicant failed to supply evidence that the dependant national was a British citizen. The Dereci judgement was also referred to in that it would be open to the applicant to seek to claim the present rights in the Republic of Ireland as her son’s chosen state of origin.

The applicant also relied on the common travel area arrangements between the UK and the Republic of Ireland under s 1(3) of the Immigration Act in claiming that Irish citizens have a de facto right to reside in the UK and so European citizenship rights can be extended to the member state where they have a de facto right of residence.

The respondent submitted that the terms of the Immigration Act did not apply to the applicant’s son as he had not arrived in the UK from the Republic of Ireland and so was not in a different position to any other citizen of another member state. Even if the common travel scheme rights did apply to the petitioner’s son, these rights arose from domestic legislation, whereas European Citizenship rights arose from the treaty.

The Court of Session accepted that the circumstances in this case differed from those in Zambrano as the applicant’s son was not a UK national. The case therefore has no application to the petitioner’s circumstances. It was noted in Zambrano that the conditions for the acquisition of nationality are for the member state in question to lay down. It is up to the Republic of Ireland to decide whether to grant the applicant’s son citizenship, despite the fact that neither he nor his family has ever visited the country. Even if the applicants son is entitled to EU citizenship by virtue of the same decision, he has not acquired a right of residence in the UK that flows from EU citizenship. The common travel arrangements have no application to the applicant’s son. Accordingly he is neither a UK national nor someone with an identifiable right of residence in this country. The court upheld the decision arrived at by the Secretary of State and refused the applicant’s petition.   

Brophy Solicitors

21.05.12          

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors

18.05.12

                 

Free Movement after Zambrano, McCarthy and Dereci

Zambrano

The judgement of the European Court of Justice in the case of Zambrano v Office national de l’emploi (C-34/09) concerned the right of Columbian citizens, Mr Zambrano and his wife, to reside in Belgium on account of the Belgian nationality of their two younger children. Their two children acquired Belgian nationality after being born there after their parents were granted a form of humanitarian protection to reside there. The parents then lost their protective status in Belgium.

The case centred around their two children who had not exercised their rights of free movement as EU nationals but relied purely on their EU citizenship in an internal situation. The court held that EU citizen children derive the rights under Article 20 of the TFEU to live in Belgium, to their third country national parents to live with them and the right of their parents to a work permit to support their children. This was based on the fact that if their parents were not allowed to reside the children, they would be denied their EU rights in being forced to leave the member state.

The UKBA adopted quite a strict interpretation of Zambrano and focussed on the notion of dependency. They adopted the stance that the judgement creates a right to reside and work for an applicant in the following circumstances;

The (i) sole carer of a (ii)dependent   (iii)UK citizen child within the UK, (iv)where that carer has no other right of residence in the UK.

In cases where there is another parent, guardian or carer upon whom the child is dependent then the UKBA say Zambrano cannot apply as the removal of the third country national would not oblige the child to leave the EU as an alternative carer is available.

This is an argument which has surfaced in Ireland also, and may be open to challenge on the basis that it fails to consider the rights of a child to the company of both parents, as protected by Article 24 of the Charter of Fundamental Rights.

The most notable outcome of this case is that there does not have to be any movement between EU member states and so it concerns internal situations within the Member States.

  

McCarthy

Following on from the broad interpretation of Article 20 in the Zambrano case is the decision of the ECJ in McCarthy v SSHD. The applicant was a dual British and Irish citizen who was born and always lived in the UK. She never worked and received state benefits. In 2002 she married a Jamaican citizen who had no valid leave to remain in the state. After her marriage she acquired an Irish passport and sought to assert her and her husband’s right to free movement within the EU. 

The two questions referred to the ECJ were whether a dual British/Irish citizen who lived her whole life in the UK is a beneficiary of Directive 2004/38. The second question was where such a person has not satisfied the relevant part of the directive whether they could still be residing legally under Article 16 (i.e to have established a right to permanent residence).

The ECJ found that Mrs McCarthy was not a beneficiary under Article 3 of the Directive because she had never moved to another member state nor could her husband derive similar rights. The ECJ declined to answer the second question. The court distinguished this case from Zambrano as the national measures taken against Mrs McCarthy had not deprived her of the genuine enjoyment of her EU rights. The denial of access to her EU rights as an adult did not have the same effect as a similar measure did on the Zambrano children as it did not oblige her to leave EU territory as a negative decision would have done in Zambrano. In summary the court found that McCarthy’s case fell outside EU law and was a matter of purely internal law within the UK.

The UKBA issued internal guidance indicating that the ECJ determined in McCarthy that a person holding the nationality of the host state who has never exercised their right to free movement cannot benefit from the directive, regardless of whether they have dual nationality. This also means that family members are unable to derive a right of residence under the directive on the basis of their relationship to a national citizen. The intention is to amend the regulations to reflect the terms of the McCarthy judgement, but until then those who hold dual nationality must be allowed to rely on this to benefit from the regulations. The UKBA’s intention is therefore to amend the Immigration Regulations to reflect the position in McCarthy, until then all will be processed as before.

Despite UKBA guidance, not all embassies are following this guidance consistently and there have been a number of refusals based on the McCarthy decision that have all been successfully challenged. Until the regulations are amended dual British/Irish nationals should continue to benefit under EU law. It is arguable that McCarthy should be limited to its facts as Mrs McCarthy had never worked or been self-sufficient and so could not rely on her free movement rights. It is arguable that dual British/Irish nationals residing in Northern Ireland can be distinguished from Mrs McCarthy if they are workers, self-employed or self-sufficient. This approach was adopted in the recent case of MAH Canada where the court stated that it appears that what defeated Mrs McCarthy’s application was that she was never a worker within the meaning of EU law and should not have exercised her treaty rights to reside in another state. It appears that neither the UKBA nor the courts are completely clear of which approach to adopt.

Dereci

As the national courts of the various member states are struggling to reconcile the decisions of Zambrano and McCarthy, much focus has been placed on the Dereci case. While this case did provide some clarity it still left many issues un-addressed. In Dereci, the Court of Justice found that as long as an EU citizen can move from their member state of origin to another member state and exercise free movement and residence rights, they can enjoy family reunion. Otherwise the only way an EU citizen can enjoy family reunion with a third country national is if they simply cannot move and the only tangible example of this so far is Zambrano. If the family cannot move to another member state then Article 7 or Article 8 must be applied. 

Dereci limits Zambrano and sets it out as an exceptional case limited to its particular circumstances. It also appears to prevent adult applicants relying on Zambrano as in theory an adult couple can always move within the EU. However, there may be circumstances where they cannot move and so again they appear to be exceptional cases. The non-migrant EU citizen would need to produce before her national court compelling evidence that her situation would only be addressed with the presence of the third country national family member and failing this they would be forced to leave the EU.

We will have to await further guidance from the courts before we can fully understand the ramifications of these recent European decisions and how they will impact on EU nationals and their families.