A Need for Reform

The much needed reformation of the Irish Asylum system has once again been thrust into the spotlight with the recent decision of M.M v Minister for Justice, Equality and Reform, Attorney General.

Under current legislation, the European Communities (Eligibility for Protection) Regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, s/he will be informed that the Minster proposes to make a deportation order. S/he will have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. Subsidiary protection is available to a person who does not qualify as a refugee but if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

 On 22^nd November the European Court of Justice held in the case of M.M v Minster for Justice, Equality and Reform, Attorney General, that Ireland’s system of subsidiary protection does not comply with the right to be heard, a fundamental principle of European Union Law. 

Applicants for subsidiary protection make a paper application to the minister, who on the basis of this application and asylum makes a decision. The government argued as the applicant has a right to be heard in the application process, it is unnecessary to hear the applicant again in the subsidiary protection procedure.

The Court of Justice firmly rejected this argumentation. The Court noted as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has the right to be heard in the context of both procedures.

Ireland is in fact the only EU country not to have a single asylum and subsidiary protection procedure. In Ireland, an applicant must first apply for asylum – a process which may take years, and receive a firm rejection of their asylum before qualifying as eligible to apply for subsidiary protection.

The complicated and cumbersome nature of the Irish Asylum application process was also recently highlighted in the decision last month in the Supreme Court case Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The Supreme Court granted injunctions restraining the deportation of a Nigerian woman and her five year old Irish-born son while they challenged their deportation order and a ministerial decision refusing them subsidiary protection. Overturning the decision of the High Court, the Supreme Court found that the deportation order constituted a disproportionate interference in the family life of the young boy who knew no other country than Ireland. The Asylum process of this country was held to be the blame for the amount of time the family had resided here.

Brophy Solicitiors

30.11.12 

Tackling the Culture of Disbelief in Asylum Claims

Earlier this month, following the Irish refugee council’s report ‘Difficult to believe’, a conference was held on Credibility in asylum claims.

Professor Guy S. Goodwin Gill a senior research fellow and professor of International Refugee law at Oxford University was the keynote speaker.

He spoke about the protection of refugees as “a matter of international obligation”, stressing the importance of “a fair and efficient procedure” in the determination of asylum claims. He highlighted that the 1951 Refugee Convention says nothing about procedures or process leaving its implementation up to the states themselves.

He described how a fair process must include certain essential elements such as a full hearing; appropriate evidential standards; evidence-based decisions and the requirement of a review or appeal.

In terms of establishing the risk of persecution he noted the problems with the onus being placed solely on the applicant and said practical considerations impose a duty on the decision maker.

In discussing the decision in Rustamov  v Russia 2012, the professor asked “what must asylum seekers show?”

In this case,  the Court pointed out that requesting  an applicant “to produce "indisputable" evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.”

The professor asserted that “The Strasbourg court is clearly sending signals about the process of decision-making.”

He also noted that the appreciation of fear of persecution is based on an objective situation and said that the decision-making process requires us to look at a series of variables making it unpredictable.

The professor noted that decision makers can’t ever have absolute confidence in their decisions but insisted that a well established process anchored in International law is needed.

In terms of personal credibility, he noted that although asylum applicants have a duty to tell the truth, there is a duty on decision makers also. He claimed that too little attention is paid to assessment and more attention needed to be paid to form for example early legal assistance, affirming that “this is what experience has taught us”.

The professor said he was pleased to read the IRC report and agreed that the system is not working and is not in compliance with international obligation. He described our system as “a ready-made case-study of what not to do”.

He highlighted how medical evidence is not given any weight in Ireland. In contrast he gave an example of a UK Court of Appeal case in which the applicant was totally lacking in credibility but succeeded on the basis of medical evidence alone.

The professor also discussed decision-makers assumptions, taking for example the claim that you can’t through an airport on a fake passport.

In terms of Appeal and review Professor Goodwin Gill said that it is not enough to say “I do not believe” and described the system as a “world of inferences”. He noted that almost universally a late submission equals a lack of credibility.

He expressed that what we want is a picture of the individual in context, concluding that “The individual needs to be brought back into the picture, back into the realm of international law.”

Justice Catherine McGuiness, who was chairing this discussion added that the “the narrow concept of judicial review opens itself up to a culture of disbelief.”

The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the Director of the centre for post-conflict justice at Trinity. Professor Byrne said that a “serious reconsideration of the system was needed” and that there was reason for significant concern over the low recognition rate here.

She discussed asylum testimony as human rights testimony and noted that “the nature of the asylum seeker as a victim has an impact on the way testimony is presented”.

She expressed the importance of rethinking how we approach credibility.

She mentioned Canadian studies that highlight a “presumptive scepticism” in asylum claims showing that unstated assumptions are driving the process.

She mentioned in particular the problems of the unstated assumption that the motivations of asylum seekers are to deceive the system.

Following this Dr. Jane Herlihy, Executive Director of the centre for the study of Emotion and the Law (CSEL) gave a presentation on psychological evidence in asylum claims. She focused particularly on the diagnosis of post traumatic stress disorder and emphasised that the absence of a diagnosis does not disprove a history of trauma just as the presence of a diagnosis is not evidence of trauma.

Fadela Novak-Irons, the UNHCR Policy Officer for Europe, described the importance of quality in decision making and expressed how credibility was at the core of this process. She highlighted the various challenges faced by the system such as decisions under conditions of uncertainty; Absence of witnesses; General nature of country of origin; human behaviour; the role of memory as well as trauma and vulnerabilities.

She went on to discuss the CREDO project currently been undertaken by the UNHCR and described it as taking a multidisciplinary approach to these issues.

The aim is for the UNHCR to launch new credibility guidelines by 2014.

Brophy Solicitors 

26.11.12

Immigration registration fee increased without warning

This week, the fee required for non EU people who are legal residents in the state to register with the authorities has increased from €150 per person to €300 per person. 

Thousands of immigrants who currently live in Ireland, including international students will be affected.

The Immigrant Council of Ireland have criticized this sudden hike in registration costs saying that: 

“The manner in which the new €300 fee was announced flies in the face of Government commitments to bring in a modern, streamlined and transparent Immigration System and in some cases will see families being forced to pay hundreds of euro more, even before the budget.”

Denise Charlton, Chief Executive of the Immigrant Council of Ireland said:

“The Government is quick to highlight and publicise the progress which has been made on citizenship, visas and in reducing bureaucracy, but this increase which will hit families hard, has effectively been announced by stealth. 

Individuals and families who are legally resident here are being asked out of the blue to dig deeper than ever before.”

Irish registration fees are now amongst the highest in Europe, in Belgium the fee is generally no more than €50, in Italy it is just over €100, with a similar charge in Austria.

http://www.immigrantcouncil.ie/media/press-releases/608-100-overnight-jump-in-immigration-fee-completely-unjust-sudden-announcement-comes-without-notice-or-consultation

Brophy Solicitors

26.11.12

Hungarian Passports for Sale!

The Hungarian government are planning to sell special residency bonds to help pay off the country’s debt.

Hungary has billions of euros worth of foreign currency debt, equivalent to 78% of its annual economic output, with the country’s debt being the highest in Central and Eastern Europe, according to Moody's Investors Service.

The Initiative  aimed  at Chinese investors, would involve spending €250,000  to  the indebted  country in exchange for preferential immigration treatment.

It has been indicated by politicians that  foreign  investors would receive residency and ultimately citizenship.

The concern for other EU countries is that a Hungarian passport  comes with the entitlement to live and work across the EU.

http://rt.com/news/hungary-citizenship-buy-bonds-663/

http://www.telegraph.co.uk/finance/financialcrisis/9644190/Hungary-plans-to-offer-passports-to-investors-buying-its-debt.html

Brophy Solicitors

23.11.12

Should the Ombudsman’s powers of oversight be extended to the areas of immigration and Asylum?

The role of the Office of the Ombudsman is to examine complaints from members of the public who feel they have been unfairly treated by certain public bodies.

Last week, the Ombudsman (Amendment) Act 2012 passed its final stages in the Dáil granting further powers of independent investigation to the Office of the Ombudsman. Some 140 government agencies were added to the list including the third level sector, the National Treatment Purchase Fund, Fas, the Irish Medical Council and the Family Support Agency.

However the agencies that deal with immigration and asylum were expressly omitted. This is a level of oversight that the Department of Justice seems to resist and  has proven to be a contentious issue.

If the Ombudsman were allowed to investigate agencies like the Irish Naturalisation and Immigration Service and the Office of the Refugee Applications Commissioner, it would mean that immigrants and asylum seekers would be able to lodge a complaint with a body independent of the Department of Justice in cases of poor administration. This would be likely to result in more accountability and improved decision making processes in these areas.

Many other European countries have this level of oversight in their equivalent immigration services. For example the UK Parliamentary and Health Service Ombudsman can deal with complaints relating to the Home office including the UK Border Agency and Identity and Passport Service as well as the Immigration Services Commissioner.

While our current Ombudsman Emily O’Reilly has noted that the Ombudsman (Amendment) Act 2012 is an historical milestone for her office, she has said that would like to see the agencies dealing with immigration and asylum come under her offices remit also. She expressed that it was a move that many, including the United Nations have been calling for over the years.

Denise Charlton, chief executive of the Immigrant Council of Ireland (ICI), agreed with Ms. O’Reilly stating that

"The Government's refusal to extend the Ombudsman's role to this area not only leaves people without an independent avenue of complaint in cases of poor administration, but in extreme cases can deny vulnerable migrants access to emergency supports and services," she also noted that

“This failure not only lets down vulnerable migrants, but also a system which has undergone many improvements in recent years."

The ICI has said it intends to ask the Department of Justice to review the current position and meet with the Ombudsman to examine if any interim steps can be taken to extend the protections of her office to those using the Irish Naturalisation and Immigration Service.

The general consensus on this issue seems to be that these Agencies should be held to account in situations of unfair treatment and poor administration like other public bodies.

Minister for Justice and Equality, Alan Shatter, has promised that this issue will be reviewed in future legislation.

http://www.independent.ie/breaking-news/national-news/call-to-widen-ombudsmans-remit-3276911.html

http://www.irishtimes.com/newspaper/breaking/2012/1024/breaking35.html  

Brophy Solicitors

31.10.12

Amnesty International urges Europe to act to help refuges fleeing Syria

Amnesty International has called on EU leaders to take the necessary steps to help the hundreds of thousands of people fleeing Syria.

Over 350,000 refugees have registered or are awaiting registration in Syria’s neighboring countries- namely Turkey, Lebanon, Jordan and Iraq.

 It has been predicted that over 700,000 refugees will have fled to Syria’s neighbors by the years end. Conversely, the EU has only received 16,500 Syrian asylum seekers. 

Amnesty have advised that the EU implement the following measures to alleviate this crisis:

•    Ensure access to protection and fair asylum procedures for all Syrian asylum-seekers arriving in the EU

•    Ensure no refugees are returned to Syria until the situation has stabilized and their safety can be assured

•    Agree a common EU approach towards determining refugee claims

•    Adopt a generous interpretation of international protection

•    Lift obstacles to safety, such as visa requirements and overly burdensome family reunification procedures

 www.amnesty.org/en/news/europe-act-now-help-refugees-fleeing-syria-2012-10-24

Brophy Solicitors

30.10.12

INIS update guidelines for migrant victims of domestic abuse

The Irish Naturalization and Immigration Service (INIS) have updated their guidelines for migrant victims of domestic abuse. The revised guidelines no longer require the parties to be living apart in order to apply for independent immigration status.

These new guidelines have been welcomed by the domestic violence coalition that is comprised of the Immigrant Council of Ireland;  Nasc; the Irish Immigrant Support Centre; Women’s Aid; Sonas Housing; Doras Luimní; Longford Women’s Link; AkiDwA; and the Domestic Violence Advocacy Service.

However Mr. Brian Killoran of the Immigrant Council has said that a number of issues remain to be resolved in relation to the new guidelines.

“We are still unclear as to the types of immigration status that will be issued to victims of domestic violence, and the rights and entitlements that these status types will give those who are in very vulnerable, dangerous situations,” he said. “We would urge the INIS to positively use its discretion to grant an immigration status to victims of domestic violence that allows for clear access to the labor market and to emergency supports. In the past, we have found that the lack of clear guidance and direction has prevented some victims of domestic violence from accessing help.”

The Coalition has advised that they will continue to work with INIS in addressing the outstanding concerns.

http://www.pila.ie/bulletin/october-2012/17-october-2012/guidelines-for-migrant-victims-of-domestic-abuse-updated-child-s-right-to-company-of-his-parents-prevents-father-s-depor/

http://www.nascireland.org/latest-news/3576/

Brophy Solicitors

30.10.12 

“Urgent Review” of Asylum Process is required

In their report “Difficult to Believe: the assessment of asylum claims in Ireland”  the Irish Refugee Council call for an “urgent review” of the entire asylum process. The vast majority of asylum cases in this country are refused with only 5% of applicants being granted protection despite apparently legitimate claims.

The report criticises the decision makers in Asylum applications and appeals. Their main concern is a “culture of disbelief” that permeates the asylum system that seemingly results in many applications not receiving fair consideration. The number of successful asylum seekers in Ireland is less than half the EU average according to the report. Conversely, the UK granted just over one in five of the applications decided in the same year (22%) This is four times the amount afforded protection in Ireland.

Sue Conlan. chief executive of the council, said the study had been carried out “to get a better understanding of why the majority of applications for refugee status in this country are refused”.

The report concluded that the application and appeal processes themselves were behind the low acceptance rate here.

“Particularly where the Tribunal is concerned there are reasons to believe that there is a ’culture of disbelief’ that informs the approach that some Tribunal members take.”

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325339068.html   

Brophy Solicitors

23.10.12

UN High Commissioner for Refugees criticizes our Asylum system

Antonio Guterres, UN High commissioner for Refugees has said that Ireland would benefit from a simpler asylum process. Ireland has one of the lowest numbers of successful asylum applications in the EU.

He was in talks last week with the Department of Justice and Equality  that  “in relation to potential improvements in the Irish asylum system, namely the possibility, through legislation, of the simplification of procedures”.

He mentioned that sought also to “improve the quality of the decisions”.

He noted that “In Ireland, I would say that the tradition is of a very strict approach to these things and what is now being discussed is how to have a more nuanced approach.”

In addition he expressed “deep gratitude and appreciation” of Irelands continued support of his office despite  its economic difficulties.

http://www.irishtimes.com/newspaper/ireland/2012/1012/1224325187869.html

Brophy Solicitors

19.10.12

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

The Mystery of the "Stamp 0"

We are confused and concerned about the application of the new residency “Stamp 0” and in particular, the recent grants of this stamp to two clients who are dependent family members. On reading the guidance, it appears that a grant of stamp 0 to such dependent family members is inappropriate and misguided.

According to INIS, the new stamp was created in December 2011 as our blog post reported. It is described as a “low level immigration permission” that permits individuals to remain in the State only for a “specific, temporary and limited purpose”. The guidance explains that the holder cannot work or engage in any business or trade without specific permission, they must be of independent means or fully supported by a sponsor in the State, and finally the holder is not entitled to receive any State benefits and must have private medical insurance.

The guidance goes on to give examples of the types of people who may be eligible for this mystery stamp. They include a “service provider” sent to Ireland by an overseas company to carry out a particular task. Which is confusing, because presumably such a service provider would need permission to work and is therefore not suited to a stamp that specifically stipulates a prohibition on employment. And the stamp is also envisaged for “visiting academics”, who, we also guess are working too. Or are they just on their holidays?

And what is the application process for this mystery stamp? According to INIS, “there will be no specific application process for a stamp 0. “  And what happens at the end of the stamp? It is stated simply that “it is not intended to be a pathway to any more permanent form of migration.”

The guidance is unclear and confusing and this is of concern to us.

We have recently had two clients issued with stamp 0. Both are elderly persons who are wholly dependent both financially and emotionally on their Irish citizen family members who are permanently resident in the State. Such dependency is increasing with age and is likely to continue indefinitely. There is no intention or prospect of our clients returning to their countries of origin. They intend to reside in the State indefinitely, financially self-sufficient and dependent on their families. This much has been categorically stated to the Minister.

We are therefore unclear and concerned as to why a stamp 0 has been issued in each case. It appears, from the guidance, that such a stamp is entirely inappropriate. The clients have categorically stated that they are not here for a temporary or limited purpose. They are here as dependent family members and have an expectation that they will be permitted to settle in the State by applying for some more permanent form of residency, for example citizenship. Yet the guidance on the stamp 0 specifically precludes using the stamp as a pathway to a more permanent form of residency. What, therefore, are the clients expected to do at the end of their stamp 0?

Our expectation for these clients was that they would be issued with a Stamp 3 by the Minister. They would therefore later be in a position to apply for a more permanent form of residency, for example citizenship, relying on their accrual of the appropriate period of reckonable residency on a Stamp 3.

We note that the restrictions that apply to a holder of a stamp 0 tally closely with those of Stamp 3. In fact, there appears to be little difference between the two stamps except for the emphasis in the stamp 0 guidance that it permits only temporary residence for a specific and limited purpose and is not intended to lead to any more permanent forms of residency.  It is unclear therefore whether a period on a stamp 0 will be classified as a period of reckonable residency that would ordinarily accrue towards a more permanent form of residency, such as citizenship. It is this particular aspect of stamp 0 that is causing us unease.

We have therefore written to the Minister to seek clarification on the application of stamp 0. We will also be making a Freedom of Information request in order to obtain the full internal guidelines for deciding officers on the circumstances in which stamp 0 is to be applied. We will keep you updated and ask you to contact us should you have any queries regarding the mystery stamp 0.

Brophy Solicitors

18.09.12 

Asylum children in 'extreme poverty'

Brophy Solicitors would like to take this opportunity to commend the IRC (Irish Refugee Council) on their report into the living conditions of young adults and children in direct provision accommodation within the State.

The report was published today and highlights issues which arise with direct accommodation for asylum seekers. The report found that there were numerous reports of malnutrition amongst young women and expectant mothers.

Within its report the IRC highlighted one particular case from a Mayo accommodation center that once a child reached six months, no more baby or toddler foods would be provided and the children would only be supplied with food “consistent with the rest of the residents”.

Brophy Solicitors

18.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0918/breaking39.html

Tamils to be deported despite clear torture evidence

An article in the UK Guardian from Friday, 14^th September, reports that the UK intends to move forward with a mass deportation of Tamils to Sri Lanka next week. Many of them arrived in the State to claim asylum, describing accounts of torture and ill-treatment.

Human rights organizations Freedom from Torture and Human Rights Watch both have corroborated those statements, arguing that “the government has severely underestimated this possibility [of torture] when it comes to returned Tamils, many of whom are routinely arrested and questioned about links with the Liberation Tigers of Tamil Eelam (LTTE) and activities in the UK, with torture often playing a part.” The UK Guardian has previously reported about aTamil man who had been refused asylum in the UK and tortured upon his return to Sri Lanka. Despite this, the UK Border Agency refuses to discuss the flights that are scheduled to deport the Tamils until after they have taken off.

Freedom from Torture notes, “This rate of referrals involving torture following return from the UK to a particular country is, to the best of our knowledge, unprecedented since Freedom from Torture was founded in 1985.”

A UK Border Spokesman said, “The UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country. We only undertake returns to Sri Lanka when we are satisfied that the individual has no international protection needs. The European Court of Human Rights has ruled that not all Tamil asylum seekers require protection.”

The head of Human Rights Watch, David Mepham, has said that HRW has documented a series of cases where failed asylum seekers from Tamil have faced torture or serious threats of torture upon their return to Sri Lanka. He recommended, “Given the very serious risk of torture facing many Tamils returned from this country, the UK should immediately impose a moratorium on these returns, pending a thorough review of UK policy in this area and the introduction of new assessment guidelines.”

At this point, it appears that the flights will go ahead as scheduled, but hopefully in the future, the UK Border Agency will more carefully review each case to prevent Tamils being returned to a situation where they would face torture or inhuman or degrading treatment or punishment.

Brophy Solicitors

17.09.12

http://www.guardian.co.uk/uk/2012/sep/14/tamils-deported-despite-torture-evidence

Shatter defers closure of Galway asylum-seeker centre

We recently reported about the order to close down an asylum-seeker centre in Galway, entitled the Lisbrook Centre (incorrectly referenced in the article as the Lisburn Centre). The Minister for Justice Alan Shatter has deferred this closing order so that he may review the motivations, reports the Irish Times in an article from Thursday, 13^th September.

In earlier articles about the issue, authorities have reported that the centre was ordered to be closed because of a falling number of asylum seekers requiring accommodation in the State, and budgets were tight. However, that does not change the fact that there are still hundreds of asylum seekers depending on direct accommodation facilities such as the Lisbrook Centre while they wait for the determination of their application. The article reports that some have waited for up to four years on the determination of their application, and many have moved up to nine times as they await a decision.

School has just started and many young asylum seekers have begun studying at a local school. They have just settled in and hope to integrate, and the Labour Galway West TD Derek Nolan cited the closure as a “terrible way to treat people.”

Local residents who support the maintenance of the Lisbrook Centre have heavily criticized the closure decision, and they intend to move forward with the planned rally in Galway on Saturday.

Hopefully the Minister reviews the decision to close the centre and quashes it, allowing many refugees who have already suffered unimaginable trials a renewed sense of welcome and security in the State.

14.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0913/1224323959445.html

Bernardo’s chief: in the best interests of the children

An article from Tuesday, 11^th September in the UK Guardian described the efforts of Anne Marie Carrie, the chief of Barnardo’s. It is an accommodation centre for families who have been refused asylum and are waiting to be deported back to their home countries. She says that her organization comes under fire often, from anti child detention organizations, but she claims that keeping the children with their families, even if it is in a detention centre, is far better than the alternative, which is to split up the families as they wait and send the children to foster homes to await deportation.

She also acts as a crucial voice for these families, as their rights are commonly ignored. She is unafraid to call the necessary authorities to ensure that the rights of the families are looked after, even though the State has denied them official protection. “If not us, then who?” she commonly asks.

Barnardo’s is a service at Cedars, the “pre-departure accommodation centre” that provides accommodation for failed asylum seekers. At the onset, Barnardo’s established a set of “red lines” that could not be crossed regarding the rights of refugees. Once crossed, Carrie took action. She raises concerns every time she believes the rights of refugees have been breached, and her voice is a valuable one to these vulnerable families.

Brophy Solicitors

12.09.12

http://www.guardian.co.uk/society/2012/sep/11/barnardos-chief-social-care-asylum-seekers

Picking on Foreign Students

The Economist this week highlights the picking on foreign students in the UK as a case of xenophobic populism ahead of the recent cabinet reshuffle. Immigrants once again seem to be the political football and the ones to blame. We hope the same narrow approach is not pursued here for example in the review of the Student Work Concession (see below) and that we continue to recognise the value of having foreign students study and work in Ireland.

The UK Border Agency last month decided to withdraw the London Metropolitan University’s licence to sponsor students from outside the European Union. This means that the University is removed from the register of licensed sponsors and students from outside the European Union are no longer allowed to study at the university.

The University has since issued a legal challenge to the withdrawal, refuting claims of systematic failings and stating that they have conducted stringent checks on their students in order to meet with the published requirements. They also point out that there have been at least 14 substantial changes to UKBA's requirements in relation to their students in the last three years.

The impact of UKBA’s revocation is stark:  up to 2,600 continuing international students are affected and may face deportation if they cannot find an alternative sponsor by 1 December 2012.

The dispute between UKBA and London Metropolitan can be seen as part of a wider tussle between the UKBA and international students as the UK government seeks to meet its election pledge of reducing immigration to the “tens of thousands” during their term in office. The most recent figure on net inflow migration into the UK stood at 216,000, so there is some way to go.

The only way the UK can realistically reduce the number so drastically is by imposing sweeping  restrictions on foreign workers and students who are the very immigrants that they need to hold on to. They make a valuable financial contribution to the UK economy and are most likely to make a beneficial impact; they keep several higher education institutions afloat and help make the UK a global player in third level education.

The Economist cites a government report that estimates earnings from foreign students to be around £7 billion a year and that this could double by 2025. The revocation of the license held by London Metropolitan could result in as much as a £30 million annual loss to the institution alone.

The UK approach, as the Economist argues, is a nasty piece of populism driven for the most part by political priorities.

Recent changes in our own immigration system have seen a tightening up of the student visa regime (see our previous  blog posts on this issue). According to INIS, in 2011 the number of non-EEA national students registered to study in the State was approximately 32,500.Broken down by education sector, 37% of students were pursuing Higher Education (Degree Programme) study, 29% were taking language courses, 23 % further education (non Degree) courses and 11% other (e.g. accountancy, secondary school).There is reported to be a decrease of around 8% in the numbers of international students in 2012.

The Department of Justice have posted their intention to review the Student Work Concession – this permits full time non-EEA students to work 20 hours per week during term time and 40 hours per week outside that. While INIS states there are no immediate plans to change this, they do not that the current economic climate necessitates further analysis of this concession.

We would guard against any change to the current concession and any further tightening of the student visa regime. Our own experience is that the work concession provides an essential means for students to meet the significant costs of pursuing studies in the State as a non-EEA student and to meet basic costs of supporting themselves through their course of study. These students work hard, they pay their taxes, they have valid permission to remain in the State. Any review must therefore be properly informed by the many benefits of attracting foreign students to Ireland and not any political populism borrowed from the UK.

Brophy Solicitors

12.09.12

Closure of asylum seeker centre criticised

An article in the Irish Times from Monday, 10^th September, discussed the closure of the Lisbrook centre, formerly the Ibis Hotel, which accommodates several hundred asylum seekers and their families. These families are now set to be relocated to other refugee accommodation centres around Ireland, but the individual relocation sites have yet to be determined.

This closure puts an already vulnerable population at additional risk. Refugees who were housed at the Lisbrook centre have endured many trials in their journey to Ireland, and they settled at the centre with the hopes that they could begin anew in Ireland. Now, as the families face uprooting, parents are worried about their children having to switch schools, communities face the loss of neighbours, and weary refugees have to face yet another move. The closure happening in mid-September shows additional lack of consideration for school children who may be already settled into a new school.

Many of the refugees were too frightened to have their names quoted in the newspaper, but they anonymously reported “serious trauma,” especially since some of them have already spent time in eight different provision centres. They were hoping to finally settle down in Lisbrook, only to find that they had to relocate once again.

The community in Galway is outraged as well. Labour TD for Galway West, Derek Nolan, said it’s a “terrible way to treat people,” and he promised to contact the Department of Justice to discover why the centre has been closed. The information provided to the refugees about their future provisions is frustratingly vague so many families are still left questioning what the future holds for them. The criticism that has risen as a result of this closure should demonstrate to the Department of Justice, and the Reception and Integration Agency, the organization responsible for direct provision accommodation, that a more stable living situation is crucial for this population of asylum seekers.

An article from 11^th September describes how an anti-racist group has appealed to Mr Alan Shatter, Minister for Justice, to review and hopefully quash the decision to close the centre. The Department have stated that “Lisbrook is closing as part of an ‘ongoing consolidation’ of accommodation for asylum seekers across the State.” However, an organization against Galway called “Residents Against Racism” has appealed to the Minister to review the decision to close the centre.

Brophy Solicitors

11.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0910/1224323799097.html

http://www.irishtimes.com/newspaper/ireland/2012/0911/1224323846858.html

Referral to Court of Justice concerning the Right of Residence for the Non EEA parent of EU citizen child in Education in a Member State

Case  Study : Ms Olaitan Ajoke Alarape (the First Appellant) and Olukayode Azeez Tijani (the Second Appellant) –vs— The Secretary of State for the Home Department (respondent) and Aire Centre (third-party intervener)

We are waiting with interest to see the Court of Justice’s response from the UK referral in the above case.  The outcome could be of great assistance in clarifying and expanding upon the rights of residence established in the seminal cases of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08.

In particular, the right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation. It is currently uncertain whether such a right of residence does or does not count towards the five years required for permanent residence. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.”

The facts of the Alarape case are as follows;

The Appellants were mother and son, and Nigerian nationals. They arrived in the UK illegally in 2001. In 2003, the first appellant married Mr. Salama, a French national, so the first and second appellants were given permission to reside until 2009. The couple then divorced in 2010.  Subsequently, the appellants applied for permission to reside based on the fact that Mr. Salama was exercising his EU Treaty Rights by working for 5 years. 

The second appellant is a student who intends to commence a course in PhD studies in Edinburgh.

The First Tier Tribunal (FTT) found that Mr Salama was not exercising his EU Treaty Rights because he had only produce evidence of employment from 2004-2006. The appellants therefore received a negative decision but they received permission to appeal

The findings made by the Upper Tribunal were as follows;

-          Mr. Salama hadn’t been exercising EU Treaty Rights, so there’s no error in law there. They don’t qualify for any of the protections of non-EU family members in the event of a divorce because he hadn’t been working.

-          Even though the son is over 21 and isn’t the child, but the step-child of Mr. Salama, his rights are recognized under Article 12 to have his education.

-          The FTT is unable to determine whether or not the first appellant is his “primary carer,” because there is no clear definition of primary carer. They enjoy a close relationship and he is financially dependent on his mother, but he lives in another city, is now 25, is healthy and able-bodied, and has entered into the labour market on his own before.

Queries of law referred to the Court of Justice:

-          For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

-          In order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

-          In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

-          In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

-          Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence”) and being issued with a residence card under Article 19 of the same Directive?

Brophy Solicitors

06.09.12