BURDENSOME PROCESS FOR REGISTRATION OF ZAMBRANO CASES

We recently posted about a family residing in Saudi Arabia who was granted permission to enter and reside in the State on the basis of their Irish Citizen Child.  On appeal of their first application which was refused for a number of reasons, we challenged the deciding officer for failing to consider the rights of the European Citizen Child in line with the judgement in Zambrano.  Ultimately the family was granted D Type visas to enter the State.  Upon their arrival, immigration officials at Dublin Airport provided the family which consists of a mother, father and three young children with a one month permission to remain.  The family was directed to register their status with the Minister for Justice and Equality and this was done almost immediately through our office.  

The family have commenced life in their new home.  They found accommodation and the children have been enrolled for the 2012/2013 school year.  The father, who is highly qualified in his chosen field, has been provided with the opportunity to work.  He is unable to do so at present without providing evidence of a Stamp 4.  He is also aware of the fact that the delay in the determination of so called ‘Zambrano’ type cases is considerable. 

We understand that there are two systems in place regarding D Type Visas – i.e. the pre-clearance visa is granted which is followed by the requirement of registering your permission to remain in the State by obtaining the appropriate Stamp on one’s passport and a ‘GNIB card.’  We informed the State that we are aware of two cases based on ‘Zambrano’ pending for over 12 months from this office alone. The INIS website states that ‘legally resident non EEA nationals who have entered the State with the intention of residing for more than three months must register with their local immigration registration officers.’   It seems that our clients, like many others such applicants, are subject to further examination after having been granted a long –stay visa.  They have been requested to make an application to the Zambrano Team in the Department of Justice and Equality which could take up to a year or more to decide.  Again, they must submit all of the documentation already forwarded to visa officials twice.  We were also advised that a temporary Stamp 4 while their application is pending is out of the question.  

The INIS website also provides that ‘the onus is on all Non EEA nationals to keep their residency up to date at all times while they are in the State.’  It is infuriating that our clients and similar families would leave their homes and jobs to relocate to Ireland. They make preparations to continue family life in Ireland based on having obtained long-stay visas to enter the State only to find that in fact they cannot avail of employment and are liable to become undocumented for a long period of time.  The State advised us that unfortunately it is the case that a person’s permission might expire during the determination of an application for residency but nothing can be done about this.  We believe that this is a very serious problem. It is unfair that a country would facilitate a person with a long- stay visa to enter the State only to allow that person to endure a painstaking wait to actually register permission to remain. 

If the State continues to operate in this manner, it should at least allow for temporary permission to issue to those who are lawfully resident in the State and risk becoming undocumented while the Minister decides their application.  The UK Home Office have operated such a system for all Zambrano applicants since the judgement itself was delivered.

We would ask the Minister what is the point of carrying our a full assessment of the Irish citizen child’s rights of residence  from outside the State, when on arrival, the full assessment must be carried out again? If the family visa are granted to enter the State,  why are the child’s  parents,  granted a temporary permission to stay as visitors for one month only,  when the residence application may take over one year to determine? How is this family supposed to support the child in the intervening period? Without lawful permission to reside, applicants become vulnerable, restricted in their proper enjoyment of family life and risk huge financial problems.  Zambrano cases are child focused but yet the Department of Justice’s policy is wholly adverse to the best interest of that child.  

Brophy Solicitors

24.08.12

NEW 2 YEAR EXTENSION FOR STUDENTS RESIDING HERE SINCE 2004

The Department of Justice & Equality has announced new arrangements for students who have been continuously resident in the State since before 1 January 2005 (i.e. the student must have received a GNIB card during or before 2004 and for each year thereafter). These new arrangements will allow eligible students to reside in Ireland for a further period of 2 years on specified conditions. In addition, at the conclusion of the two year probationary period those students will be eligible to apply for a more permanent status on condition that certain obligations have been fulfilled.

Any non-EEA national student who first registered their residence in Ireland as student on or before 31 December 2004 and who commenced their studies in Ireland on or before 31 December 2004 may apply for the special probationary extension.

Non-EEA Students who are no longer resident in the State will not be eligible to avail of this student probationary extension.

In order for such a student to be granted the extension they must have maintained their residence as a student from first registration until the date of application for the Student Probationary Extension. Any student not currently registered and with a significant gap in registration will not be eligible to apply for the extension.

Students must also furnish one P60 certificate that has been acquired within the previous three years.

The following residency conditions will apply to the probationary period –

·        The eligible student will not be required to be registered or enrolled in an academic course of study.

·        The eligible student will be permitted to work for a maximum period of 40 hours per week without being required to hold a work permit.

·        The eligible student will be required to maintain private medical insurance.

·        The eligible student will be required to reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.)

·        The eligible student will not be permitted to apply for reunification with family members who are resident outside the State.

·        The eligible student must be of good character and must demonstrate that they are law abiding.

At the conclusion of the two year probationary period the eligible students can apply for a Stamp 4 permission to reside in the State.

Brophy Solicitors welcomes these new arrangements and is available to assist potential applicants with any queries they may have regarding the scheme. 

Brophy Solicitors

24.08.12

Coalition Welcomes New INIS Guidelines for Immigrants Experiencing Domestic Violence

The Immigrant Council of Ireland (ICI) has commented on the new Irish Naturalisation and Immigration Service (INIS) guidelines for immigrants that are victims of domestic abuse, specifically if the right to reside in Ireland is dependent on the abuser. The guidelines contain information on how to “obtain immigration status independent of their relationship with the perpetrator.” These guidelines are important for someone who is here on a family visa, or because of EU Treaty Rights, where their permission to reside is dependent on their partner’s immigration status, their citizenship of the EU, or their status as a worker. The person suffering the abuse might be frightened to seek a safer situation, and leave the abusive relationship, because they might be afraid that their permission to stay will be revoked. The majority of those affected are women, and these women should know that they have clear options for staying in the state while leaving the abusive relationship.

The INIS report is “aimed at explaining how a victim of domestic violence whose relationship has broken down can apply for independent immigration permission in his/her own right.” The guidelines then specifically define domestic violence, and then clearly state that “you do not have to remain in an abusive relationship in order to preserve your entitlement to remain in Ireland.” Applications must be made from within the state, and the applicant must have a current, valid immigration status. In the application, the applicant must state out the circumstances of the abuse, whether or not the family home has been broken up, and any supporting evidence possible, including a Protection Order from the Courts, a Garda report, and medical records. Generally, the applicant will retain the same immigration status they held previously, a stamp 3. However, stamp 3 does not enable a person to work, so if it becomes necessary for the applicant to work to provide for herself and any dependent family members, special consideration will be given.

Brian Killoran, of the ICI, has called for INIS to ensure that these women will be granted unrestricted access to the labour market and emergency support. There are a few other issues with the guidelines, as it is not clear exactly what status will be given, since the applicant is no longer dependent on their abusive partner. However, the guidelines do contain helpful information for victims of domestic violence. They are in an extremely vulnerable position, and it is crucial for them to be aware of the fact that they can leave their abusive relationship and still retain permission to reside in Ireland.

Brophy Solicitors            

23.08.12

http://www.immigrantcouncil.ie/media/press-releases/569-coalition-welcomes-new-inis-guidelines-for-immigrants-experiencing-domestic-violence

Special vulnerabilities of asylum seeking children brought to light in Special Rapporteur’s Report

The Irish Refugee Council, on 9^th August 2012, discussed a Special Rapporteur’s Report, discussing the specific difficulties that face children seeking asylum. Specifically, the Report highlights the difficulties of raising children in Direct Provision, the state-sponsored accommodation provided for asylum-seekers. Problems include “over-crowding, institutionalised poverty,” and the inability of parents “to provide their children with a normal family life.”

Children also face a higher risk of abuse, since poor conditions are rampant, the accommodation is crowded, and parents have little control over who interacts with their children.

The Report calls for research into the specific vulnerabilities that children of asylum seekers face, and the IRC celebrates this decision. The IRC also calls for a reform of Direct Provision, with the needs of the children addressed.

Brophy Solicitors

23.08.12

http://www.irishrefugeecouncil.ie/news/special-vulnerabilities-of-asylum-seeking-children-brought-to-light-in-special-rapporteurs-report/1297

Journalist asylum-seeker released from detention

A Cameroon national who sought asylum in the UK was released from detention, reports the UK Guardian in an article reported on Monday, 13^th August.

The man fled Cameroon in 2007 after being abused by the ruling governmental party for supporting opposition groups. He was a journalist in Cameroon and he suffered mistreatment. He has resided in the state since, where he met and married a charity worker. He was ordered to return to Cameroon to apply for a spouses visa, and he offered to return voluntarily if the government could guarantee his safety, but as they could not, he refused to go. He was detained and given a deportation order, but has now been released and has been granted permission to apply for Leave to Remain.

Brophy Solicitors

http://www.guardian.co.uk/uk/the-northerner/2012/aug/13/immigration-refugees-bernard-mboueyeu-cameroon-sheffield-uk-borders-agency

Theresa May blocks Chinese visa changes over security fears

An article from the UK Guardian on Thursday, 16^th August, discussed how Home Secretary for the UK Theresa May blocked an attempt to make it easier for Chinese visitors to obtain visas to visit the UK. She argues that it would “pose a national security risk,” and she blamed poor visitor numbers on “tourism chiefs not promoting Britain’s natural beauty properly.”

Culture secretary Jeremy Hunt revealed an £8m plan following the Olympics to triple the number of Chinese visitors to Britain by 2015, but May has stated her opposition to this plan. Currently, Chinese visitors are able to obtain an EU visa that allows them to visit 25 EU countries, but they need a separate visa to enter the UK. Hunt’s plan would make obtaining a UK visitor’s visa much easier for the Chinese visitors, but May has argued that “visa checks in Europe ‘do not match the UK decision quality’” and claimed that “British visa controls are a ‘key tool in protecting the public against significant harm.’” She cites national security as one of her main motivations for rejecting the plan, fearing that allowing more Chinese nationals to visit the UK would lead to more crime and a reduced sense of national security.

The article concludes by admitting, “The government is particularly keen to attract Chinese tourists because they are estimated to spend an average of three times more than other overseas visitors, but France receives 25-50% more Chinese tourists than the UK.

Brophy Solicitors

22.08.12

http://www.guardian.co.uk/politics/2012/aug/16/theresa-may-blocks-chinese-visa

Burmese man not entitled to subsidiary protection

The Irish Times on Monday, 20^th August 2012, reported a decision made by the High Court regarding the application for subsidiary protection by a Burmese national. The court refused to review a decision refusing subsidiary protection to the Burmese man. The decision was reached because Mr Justice Cooke determined that his story lacked credibility, and the Court did not believe that he would suffer serious harm if returned to Burma.

The man had initially applied for asylum in Ireland after leaving Burma in 2008 due to religious clashes. He is a member of the Rohingyen ethnic minority, and claimed to have lived in a refugee camp with his uncle in Bangladesh. At the camp, he was offered a job in a religious group whose practices were banned in Bangladesh, and after overhearing a conversation regarding his forced removal to Afghanistan, he fled to Ireland, where he immediately claimed asylum. His claim was unsuccessful, and he proceeded to apply for subsidiary protection. The article reports that his council cited that “this was based on the fact that members of the Rohingyen minority suffered mistreatment, discrimination and hardship, and the danger of his being sold to Afghanistan constituted a threat of ‘serious harm’.” However, his application for subsidiary protection was refused, and he brought the matter before the High Court for a review, stating that “the Minister had not made a finding that the applicant was not a member of the Rohingyen minority. He argued he was therefore obliged to consider the treatment he might receive as a Rohingya if returned to Bangladesh. He said the Minister did not consider this in his refusal to grant subsidiary protection.”

However, Mr Justice Cooke ultimately refused the review, letting the decision rest as is. He ruled that while a member of the Rohingyen minority may face “economic and social difficulties” in Bangladesh, this did not constitute “serious harm” as is necessary to obtain subsidiary protection.

Brophy Solicitors

21.08.12

http://www.irishtimes.com/newspaper/finance/2012/0820/1224322492435.html

Children of non-EU nationals facing huge college fees

An article in the Irish Times on 17^th August reports that children of non-EU nationals are required to pay substantially more in college fees than an Irish national student. This financial burden means that in the first round of CAO offers, many non-EU students will be forced to reject or defer placements. Many of these students have resided in the state for a number of years, but the accumulated time is not sufficient to exempt them from the international student fees.

Children of non-EU nationals are required to register with the GNIB at the age of 16, and often, they are given residency classifications that mislabel them as foreign students or foreign workers, despite many of these students having resided in Ireland for a substantial length of time. They wish to apply for citizenship based on the citizenship of their parents, since without citizenship they do not qualify for the EU tuition rates, but most of the time, their parents have not resided in the state long enough to obtain naturalisation before the student turns 18 and begins applying for college.

Some universities have acknowledged this problem and allow these students to pay EU fees, which are less than non-EU fees but still substantially more than Irish fees. This system effectively bars many bright, capable students from going to colleges where they have well earned their place.

Brophy Solicitors

21.08.12

http://www.irishtimes.com/newspaper/ireland/2012/0817/1224322324547.html

APPLICATIONS FOR PERMANENT RESIDENCE CARD AND THE REQUIREMENT OF CO HABITATION

We act for many clients who are making applications  for permanent residence cards pursuant to of Directive 2004/38/EC and the EC (Free Movement of Persons) (No 2) Regulations, 2006 as amended.

Many of these applications are submitted on the basis that the applicant complies with the criteria of Article 16 (2) of the Directive – that is that he or she has resided legally with the Union citizen in the State for a continuous period of 5 years.  Similarly, Regulation 13 (6) refers to that family member “who has resided with the Union citizen in the State”

We submit that the requirements if Article 16/Regulation 13 is that both the EU and the non EU family member reside in the State for a five year period, but not necessarily that they co habit for the give year period. However, the Department of Justice continue to seek evidence that the couple resided together in the same household for that period.

We would refer to the case of PM (Turkey) [2011] UKUT 89 (IAC) in which the Upper Tribunal found that in the light of its objects and purpose Article 16(2) of the Citizens Directive is intended to afford all family members the right of permanent residence after five years residence in the host state where the EEA national has resided, whether or not they had actually cohabited throughout that period.

We would also point out that Article 7 (2) (and Regulation 6(3) (a)) both direct that a non EU spouse of an EU national shall be entitled a residence card if the EU spouse is exercising his/her EU Treaty Rights. Neither the Directive nor the Regulations direct that they be co habiting in order to be entitled to the initial five year residence card. Therefore, if the applicant has complied with the terms of Article 6/Regulation 6 for the period of their marriage, regardless of whether they were co habiting or not, it would be illogical to find the non EU citizen is then ineligible for the permanent residence card.

These points were assessed by Mr Justice Cooke of the High Court in the case of  Mohamud and Muna Abdulle Ali vThe Minister for Justice,  judgement dated 18^th February 2011.

Mr Justice Cooke held that requesting documentation that Ms. Ali had lived resided with Mr Mohamud was unlawful and unnecessary, since no such requirement had been directly stipulated in the Regulations or the Directive. Regulation 10(2) (b) even states that a non-EU national may retain the right to reside even in the event of divorce or annulment if the couple had been married for three years, including one year in the State. Mr Mohamud and Ms. Ali qualify under this stipulation as well. Therefore, Justice Cooke ruled that it was not a requirement that the non-EU national be residing in the same house with the EU national in order to qualify a residence card based on their EU Treaty Rights. The Court saying that it was a requirement is a mistake in law, and Justice Cooke quashed the refusal order.

Brophy Solicitors

10.08.12

UK Guardian: EU Students say permit delays are putting degrees at risk

An article in the UK Guardian reports how delays for work permits are damaging the employment opportunities for Romanian students. One student, Emilia Gheorghe, described how, as a second-year university student, she should be beginning work at a summer school, trying to boost her CV and help her obtain post-graduate employment. Instead, she is forced to wait for the UK Border Agency (UKBA) to process her application for a work permit. She submitted her application over eighteen months ago, and she still has not heard a decision. This delay has forced her into limbo, without permission to work, and she is missing valuable opportunities as a result.

The situation that Gheorghe is in is not unique. At least a few dozen other Romanian students studying in the UK have experienced extraordinary delays in the processing of their visa applications. Without the visa, students are not able to work part-time jobs to support themselves, and obtain jobs in their field to gain experience that could be crucial when it comes to starting a career. Various complaints have been lodged by the students to the UKBA, and a formal petition was filed, stating, “If the United Kingdom . . . would like to continue setting a high educational standard and attracting the best and brightest from across the glob, the UKBA needs to guarantee that it will process visa applications in a timely, transparent, and effective manner.”

When Romania and Bulgaria were accepted into the EU in 2007, there was an initial gradual transition period, where they were not allowed to work. However, after a few years, students obtained permission to work f they could provide a registration certificate confirming that they are students. The UKBA has promised to process these applications quickly, but students are experiencing a significant delay.

Ireland has recently lifted all restrictions on Romanian and Bulgarian workers, meaning that they now have total access to the labor market, but the UKBA has issued statements saying that it intends to keep the restrictions on the labor market in place until January 1, 2014, keeping them until the end of the seven-year transition period.

Brophy Solicitors

03.08.12

http://www.guardian.co.uk/education/2012/aug/02/work-permit-delays-plague-romanian-students

Immigration Backlog: New Warning from watchdog

The UK Border Agency is facing a growing crisis as the number of foreign nationals remaining in the State after their visas expires has risen to 150,000, reports an article from BBC news. The article reports that there is “no clear strategy” for how to prevent this from becoming a backlog, further increasing the chaos and inefficiency of the current system.

Many of these now-undocumented foreigners are students who have completed their degrees, and their permission to remain in the State as a student has expired. Some have tried to apply for permission to continue residing in the State, but without a significant tie to the UK, like a highly skilled job or a spouse, these applications are refused. Once their permission to remain has expired, they must exit the State or face a deportation order. Of these migrants who have been told to leave, the Border Agency has no way to tell how many have actually left. This creates a problem in the Border Agency’s eyes because that means that there is a growing population of undocumented migrants residing in the state. There is currently no scheme in place to hasten their removal.

The article reports that poor management leads to long queues at the airport as well as a backlog of work. This causes the immigration system to run even more inefficiently.

Brophy Solicitors

02.08.12

http://www.bbc.co.uk/news/uk-18715036

Racist bullying of migrant children ‘ignored’

 An article in the Irish Independent from July, reports that racist bullying towards migrant children is increasing. Rather than developing a solution, perhaps by targeting the ignorance through educational outreach programs, the migrant children are told to develop a “thicker skin” to cope with the bullying. The article describes how “the ICI [Immigrant Council of Ireland] is calling on the Government to tackle racism and xenophobia ‘as a national priority’ through education and awareness-raising campaigns.” These migrant children have already endured hardship and trauma in their transition to a brand-new country, and the last thing they need is to face racist bullying from their peers at school. The Government should respond to the call from the ICI and establish programs that seek to reduce or eliminate such xenophobia.


Brophy Solicitors
2.08.12

http://www.independent.ie/national-news/racist-bullying-of-migrant-children-ignored-3161898.html

Migrants Petition for Regularisation

A petition signed by 4,000 members of the public landed on the desk of Tom Cooney, special advisor to Minister for Justice Alan Shatter, reports an article in the Irish Times. The petition was organised by the members of the Justice for the Undocumented campaign, which seeks to illuminate the plight of undocumented immigrants in Ireland. The petition had a specific mission, to seek support for the Migrant Rights Centre Ireland, which “aims to allow undocumented migrants living in Ireland to enter an earned regularisation scheme which would require undocumented people to work over a period of time, pay taxes and meet other criteria before being allowed residency.” This scheme is crucial to give undocumented migrants a voice in Ireland. It is not a hand-out, and it is not amnesty, it is simply recognising the presence of undocumented migrants, allowing them to step out of the shadows, and stop living in constant fear. For most undocumented workers, living illegally in the State is better than the alternative, which is to return home lawfully and risk being unable to support their families. The petition aimed to encourage the state to commence searching for a solution.

Brophy Solicitors

31.07.12

http://www.irishtimes.com/newspaper/breaking/2012/0718/breaking29.html

Immigration: are foreign students visitors or migrants?

A video report released by BBC recently discusses the on-going governmental debate about whether or not international students studying in the UK should be considered immigrants or visitors. Right now, the official answer is immigrants, but there is talk of changing it to visitors.

The Business and Education Department supports the change in status of international students from immigrants to visitors. They argue that students arrive in the UK with the intent to study for a few years and then return to their home country upon the completion of their degree. The Department recognizes the significant economic contribution that international students make to the economy—currently estimated at £8 billion per annum, and that figure is expected to rise. The Department also raises concerns that other countries such as the US, Australia, and Canada are aggressively campaigning for foreign students to come to their countries to study, and the UK recognizes that it is falling behind.

The Home Office, however, is dead set against the change. They believe that international students should be classified as immigrants. They acknowledge the figure that 20% of international students never actually leave the State following the completion of their degree, for a number of reasons, including marriage to a UK national, a work permit, or other strong ties to the State. They are, without question, immigrants, and the Home Office believes that classifying these students as anything other than immigrants would be “fiddling the figures.” It is surprising, however, to note that the Home Office is against the change. The UK tries to keep their net inward migration totals below 100,000 per annum, whereas the level is currently at about 250,000. A change in status of international students would lower this number significantly, meaning that the UK would be more on target with their net inward migration goals, but the Home Office allows that such a change would be simply manipulating the data. Critics say that classifying international students as visitors may deter them from applying to study in the UK, but the Home Office rejects this argument, saying that there has been a 9% increase in foreign applicants in the past year.

Brophy Solicitors

http://www.bbc.co.uk/news/uk-politics-18856411

BULGARIAN AND ROMANIANS OBTAIN FULL ACCESS TO LABOUR MARKET IN IRELAND

On the 20^th of July, 2012, in a statement from the Department of Jobs, Enterprise, and Innovation,  the Minister officially granted Romanian and Bulgarian nationals access to the labour market in Ireland. Originally, these restrictions to the Irish labour market were set to be lifted  on 1^st January 2014, following a seven-year transition period that allowed EU member states to prepare for Bulgaria and Romania’s full adoption of EU law on free movement of workers.

After reviewing the restrictions that were previously in place before the 20^th of July, the Government discovered that “in 2003 some 3,600 permits were sought from nationals of both countries [Romania and Bulgaria], declining to just over 50 applications in 2011.” Also, the population of Bulgarians and Romanians living in Ireland has declined by 3,000 between 2008 and 2011. The Government decided that continuing restrictions in light of these figures is questionable, and has decided to bring forward the transition date from 1^st January 2014 to 20^th July 2012.

There are numerous benefits to eliminating the restrictions, namely fostering positive relations between Ireland and the two countries, as well as with the European Commission and the other member states, since only 9 of the 27 members retain the restrictions on Bulgarians and Romanians in the labour markets. Also, students and self-employed or self-sufficient nationals from the two countries already have access to the labour markets in Ireland anyway.

Questions have been raised in an article from the Immigrant Council of Ireland about whether or not time spent in Ireland before the free access to the labour market restrictions were lifted counted as reckonable residency, but so far, the decisions by the department have been inconsistent. We will have to watch to see if they develop a line of authority with their judgements in this matter.

The United Kingdom has decided to retain its restriction on the labour market for Bulgarian and Romanian nationals. In a report from the UK Border Agency on the 23^rd November 2011, Minister Damian Green announced that the restrictions will be extended until the end of 2013, fulfilling the full seven year transition period after the initial acceptance of Bulgaria and Romania to the EU in 2007. This means that in order to work in the UK, nationals from those two countries will be required to seek permission from the UK Border Agency. The Border Agency expressed a commitment to reduce employer’s dependence on migrant workers, and a potential negative impact on wages nationwide.

Brophy Solicitors

30.07.12

ZAMBRANO - SUCCESSFUL OUTCOME FOR FAMILY RESIDING OUTSIDE THE STATE

We are delighted for our clients, a Syrian family of five residing in Saudi Arabia, who have all been granted visas to reside in Ireland on the basis of our submissions under the Zambrano ruling and under the Treaty on the Functioning of the European Union.

The two parents of a young Irish citizen child who had been granted Irish citizenship wished to relocate to Ireland based on the fact that they were prevented from returning to Syria.  Their life in Homs had been completely destroyed and the father of the family found temporary work  in Saudi Arabia. The family’s initial application was refused as it was held the Irish citizen child had no connection with the State having never resided here (she obtained her Irish passport based on her birth in Belfast.)  The case was considered under Article 8 of the ECHR, under the proportionality test and the Constitution but the deciding officer failed to consider the child’s rights as an EU citizen and her rights established under the ruling in Zambrano.  Within a matter of weeks the application was re-considered on appeal and the family will enter the State this year.

In a separate but related case, a Syrian family was recently granted permission to enter the State on visitor visas.  The family of two parents of two Irish citizen children left their home in Homs, Syria.  They secured a visitor visa within a matter of weeks and applied for residency under Zambrano.  Their application was made in October 2011 and was decided favourably in June 2012.  

We note that a huge volume of residency applications relying on the Zambrano case are still pending and 9-12 months appears to be the average processing time.  We will keep you updated as to any further developments in this regard.

Brophy Solicitors

30.07.12

Skilled migrants ruling prompts emergency action by Theresa May

                                                                                                                                                    

An article in the UK Guardian from Wednesday, 18^th July, described how a Supreme Court ruling challenged previous changes to the skilled migrant program. The ruling threatened to make thousands of previous decisions illegal, because the court declared that the changes were unlawful, since they had not been brought before parliament before their implementation. In addition, the ruling said that “changes to lists of shortage occupants, salary and skill levels, and advertising requirements had been set out in codes of practice that had not been laid out before parliament and so could not be relied on by UKBA to refuse work permits or visa applications.” The lead justice in this case, Lord Hope, stressed that changes to the immigration legislation had to be scrutinized by parliament, no matter what, or else the practices would be unlawful. This ruling could influence cases reaching as far back as 2008, but it should not have a direct effect on applications being made at the present moment. Home secretary Theresa May has put a statement of immigration policy changes before Parliament today, 19^th July, and they should go into effect tomorrow, however, this is a further blow on her already poor reputation. An unnamed Home Office spokesperson claimed that the ruling yesterday was intended to further simplify the immigration process, but it appears to have just muddled the waters even further.

Brophy Solicitors

http://www.guardian.co.uk/uk/2012/jul/18/skilled-migrant-ruling-emergency-action?INTCMP=SRCH

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