Should the state consider Subsidiary Protection applications when no claim for asylum has been made?

A case dealing with the question of whether the state is entitled to allow Subsidiary Protection applications only where an applicant has been refused refugee status has been referred by the Supreme Court to the European Court of Justice. (Haq Nawaz v Minister for Justice, Equality and Law Reform Ireland and the Attorney General 2012)

The Applicant is a Pakistani National who entered Ireland on a student visa in 2003. He married and Irish national and for that reason was granted permission to remain until December 2005. The marriage was of short duration and in February 2006, the minister notified the Applicant that he was considering issuing a deportation order. Nevertheless the applicant stayed in the country as a full time student.

The applicant did not at any time apply for asylum. He submitted that he does not fear persecution by reason of race, religion, nationality, political opinion, or membership of a particular social group and that he is therefore, not a refugee. However the applicant claims that he is afraid to return to Pakistan because of the indiscriminate violence occurring there.

In June 2009 the applicant made an application for subsidiary protection. The Minister replied stating that the basis for  making an application was that the person applying had been refused refugee status. Since no application  for refugee status had ever been made by the applicant, it was not possible to apply for subsidiary protection status.

The applicant seeks an order quashing the Minister’s decision refusing to consider his application for subsidiary protection and requiring him to determine it. Secondly he seeks a declaration that the national regulations are unlawful and incompatible with the Qualification Directive insofar as they provide that the Minister may not consider an application for subsidiary protection of a person who has not failed in an asylum application.

The applicant submits that  neither Article 78 of the treaty not the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers.

In addition he submits that he does not have a well founded fear of being persecuted for a Geneva Convention reason. He says he cannot even complete the asylum application form without selecting an untrue reason.

The applicant submits that it is contrary to the principle of good administration guaranteed by Article 41 of the charter of fundamental Rights of the European Union that he should be required to make an application for refugee status in circumstances where he accepts that he is not entitles to and does not claim that status.

The Minister argues that neither the Qualifications Directive not the regulations permitted the application to make a “stand-alone” application for Subsidiary protection. Submitting that the Geneva convention is the cornerstone of the international legal regime for the protection of refugees and that that position can only be maintained if an application for protection is assessed, first of all, to establish if the applicant in question qualifies as a refugee, with the question of eligibility for subsidiary protection being addressed only where it has been held that he does not.

Additionally the minister argues that the Qualifications Directive Is not concerned with procedures at all and does not impose and procedural obligation on a member state to accept such an application merely because a person subjectively considers that he is not a refugee.

In their consideration, the Supreme Court reiterated that the regulations do not confer any power on the minister to consider an application other that “a person whose application for asylum has been refused by the minister…”

The court considers the true question at issue in this case is whether the Qualification Directive requires Member States, in  their implementing measures, to make it possible for a third country national to make an application for subsidiary protection status without making any application for refugee status.

The Supreme court concluded that in order to determine it is necessary for the court to have answers to some questions and so has referred the case to the Courts of Justice of the European Union with the following question:

“Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental rights of the  European Union, permit a member state which has not adopted a single administrative procedure for determining both applications for refugee status and subsidiary protection status, to provide in its law, when implementing the Directive, that a third country national or stateless person be enabled to apply for subsidiary protection status only when that person has applied for and been refused refugee status in accordance with national law” .

Brophy Solicitors

 7.12.12

Duty to give reasons and the Nature of "absolute discretion" in Naturalisation Applications

The Supreme Court has quashed the Minister for Justice’s refusal to grant a Syrian lawyer a certificate of Naturalisation for Irish citizenship following the ministers failing to give reasons for his decision as he is required.

Mr. Justice Niall Fennelly noted that developing Irish jurisprudence provided persuasive evidence that it must now be “unusual” for a decision-maker to be allowed to refuse to give reasons. “Where fairness can be shown to be lacking, the law provides a remedy,” he said.

Persons affected by administrative decisions should have access to justice and the right to seek court protection to ensure the rule of law had been observed, fair procedures were applied and their rights not unfairly infringed, he said.

Syrian lawyer Ghandi Mallak and his wife came here in 2002 and both secured asylum later that year. They later applied for a certificate of Naturalisation as part of the process of seeking Irish citizenship. While his wife was granted citizenship, Mr. Malaks application was refused without explanation.

Mr. Mallak’s lawyers later sought documents under the Freedom of Information Act, including the Minister’s reasons, but were told that the minister was under no obligation to give reasons

He later appealed to the Supreme Court against the High Court’s rejection of his challenge to the Minister’s refusal to give reasons.

The applicant argued that section 15 of the 1956 Act id unconstitutional insofar as it allows the Minister to refuse to grant a certificate of Naturalisation in his absolute discretion i.e. without giving reasons. Additionally he argues that the section should be interpreted in the sense that the minister is obliged to give reasons.

Mr. Mallak also complained that the ministers decision refusing him a certificate of Naturalisation has significant consequences for a person declared a refugee as he is left effectively stateless.

The Minister argued that in cases of absolute discretion, there is no obligation to give reasons. Thus s 15 of the Act of 1956 necessarily excludes any duty to give reasons since such a duty would negate the nature of the discretion conferred.

It was highlighted that Naturalisation is granted by the minister as a matter of privilege and not a right.

Fennelly J observed that there was an emerging assumption that persons affected by administrative decisions were entitled to know the reasons for them so they could understand them and potentially appeal.

It was held that while the granting of a certificate of Naturalisation was a privilege, not a right, and the Minister had discretion in that matter, Mr. Mallak was still entitled to have his application considered in accordance with law and to apply to the courts for redress.

The extent of the Minister’s obligation to give reasons arose in the developing general principles of judicial review and by reference to the particular statutory provision, the judge said.

This judgment has widespread implications for other administrative decisions where unfairness is at issue.

Welcoming the decision, Denise Charlton, Chief Executive of the Immigrant Council of Ireland said that they:

“Continue to call on the Government to ensure that people whose applications are unsuccessful are given the reasons in writing and a right to appeal to an independent body, as well as the courts.

It is unacceptable that the protections of the Office of the Ombudsman are not extended to people using the citizenship and immigration system. This court decision has again highlighted the need for a modern, efficient and transparent immigration system which is based on justice and fairness.”

Brophy Solicitors

7.12.12

Irish times article:

http://www.irishtimes.com/newspaper/ireland/2012/1207/1224327610468.html

Immigrant council statement:

http://www.immigrantcouncil.ie/media/press-releases/617-supreme-court-ruling-should-lead-to-transparent-citizenship-decisionsimmigrant-council-welcomes-decision-in-mallak-case-statement-by-immigrant-council-of-ireland-

The Best Interests of the Child

On the 10^th November 2012, the 31^st Amendment to Bunreacht na hEireann was approved. The new Article 42A in relation to Children’s Rights provides:

ARTICLE 42A – CHILDREN.

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child

What does this mean?

Article 42A.1 The Government and State is obliged to ensure, as far as practicable, that the rights of ALL children are protected and vindicated. The main effect is to recognise and affirm rights of children and place them on the same plane as the general personal rights of citizens. Citizen children would have held the personal rights of citizens in any event. There is a difference between “all children” and “citizens”. However, in practice the courts have never limited the rights protected by Article 40.3 to citizens, so this distinction is of no practical effect. Essentially, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status.

Article 42A.2. 1° - The State may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The emphasis has been shifted so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty This intervention must have due regard for the child’s rights and will only be allowed in exceptional cases. The biggest change here is that the State can intervene where the parents have failed in their duty towards their children, whether in fact, those parents are married to each other, or not. Previously this failure was in relation to moral and social duties, whilst now the wording refers to failure in their duties to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Under this approach, parents would be taken to have failed in their duty if they did something (or failed to do something) which was likely to affect prejudicially the safety or welfare of their child consequently leading to State Intervention. It is clear this establishes a different standard for intervention. It could imply that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s safety OR welfare. Any intervention by the State must involve the use of proportionate means, which must be set out in legislation.

                 

Article 42A.2. 2° - A major change relates to the issue of adoption. Previously there was no law permitting married parents to voluntarily place a child for adoption. The law now provides, at a constitutional level, for the adoption of any child, whether that child be a child of a married, or unmarried, couple. The proposed amendment provides for adoption where the parents have failed in their duty towards the child for a specified period of time, and where the best interests of the child so require. The draft legislation published with the provision allowed for a period of three years, however this could be decreased or increased in the future.

Article 42A.3 - This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family. Previously voluntary placement for adoption was permissible only where the child was born outside of marriage or orphaned. In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child could only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010;  any child – marital or non-marital – could be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18. The failure must amount to an abandonment of all parental rights in respect of the child. Such an adoption, moreover, could only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights. Art.42A(3) offers children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption. Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage may also be best served by adoption

Article 42A.4 1° - applies to proceedings initiated by the State and proceedings not necessarily initiated by the State. This section introduces a best interests test into the constitutional text for the first time. In all court proceedings, where significant decisions are being made in relation to a child, the paramount consideration is the best interests of the child. There is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts and the Adoption Authority are bound to consider the welfare of the child as ‘the first and paramount consideration’. In section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration. It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings.

Article 42A.2 2° - The amendment provides that where practicable, the views of the child himself, or herself, should be obtained and due weight given to those, having regard to the age and maturity of the child. It is the case that the views of the child are often taken into account in Court proceedings however the reformed article will put this on a Constitutional footing. This best interests test can only come into operation when the threshold for state intervention has been passed.This represents a very cautious and limited attempt to incorporate Article 12 of the United Nations Convention on the Rights of the Child into Irish domestic law. Indeed, Article 12 of the Convention is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2)) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.

                 

The Constitution must be interpreted harmoniously, and article 42A will be read in light of other constitutional provisions, namely the unaltered article 41. The Family will still be regarded as the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” with a State commitment to protecting it in its “constitution and authority”.

Brophy Solicitors

7.12.12

Migration: A necessary element of the past, present and future in Ireland.

The need for Immigration

The history of the our country is pervaded with tales of migration, from the necessary departure from Irish soil during times of Famine, the Great Depression, recession in the 1980s and of course the current day consequences of the collapse of the Celtic Tiger. Between 1871 and 1961, the average annual net emigration from Ireland consistently exceeded the natural increase in the Irish population, which shrank from about 4.4 million in 1861 to 2.8 million in 1961.[1] With the exception of the 1970s, when, for the first time in Irish history, net migration to Ireland was positive, outflows continued to exceed inflows until the early 1990s.

However migration is not a faucet of our society’s history which completely emanates doom, embodying unhappier times. The 1990s – early 2000s economic boom saw unprecedented levels of prosperity. Ireland experienced a flow of migrant workers, both EU workers and asylum seekers from outside the Union. In 1996, Ireland reached its migration "turning point," making it the last EU Member State to become a country of net immigration. This was a consequence of rapid economic growth which created an unprecedented demand for labour across a wide range of sectors, including construction, financial, information technology, and health care. Unemployment declined from 15.9% in 1993 to a historic low of 3.6% in 2001.[2]

A recent report ‘Migration and the Economy’ compiled by the economist Jim Power, for the Integration Centre (a not - for – profit organisation dedicated to promoting integration) has found that even after the crash, immigrants are playing a vital role in the Irish economy. In fact for Ireland to prosper, it is necessary to promote inward immigration.

This is a stark contrast to the commonly held view that migrants are in fact a burden on the Irish economy.

The report found that foreign born works work at all levels of the economy, most working in lowly paid, service and administrative jobs. In some trades they make up one third of the workforce. The highest number of migrants came from Poland and then from the UK, both EU countries. The report also states that immigration was vital to the Irish economy in the boom years when the unemployment rate fell below 4%. It was commonly agreed that immigration was necessary. However, after the crash in 2008, there were elements in Ireland who said that immigration was unaffordable.

The report stipulates that there is little evidence to support this. It states that immigrants are retraining. There is no evidence of benefits tourism being a motivation for immigration into Ireland.

 'The non-Irish population is highly skilled with qualification levels exceeding that of the foreign population in other EU countries. The overall majority hold professional or trade qualifications. The variety of language skills they hold is vital to the Irish economy…, in short, the immigrant population has been and remains a key asset to the Irish economy.'[3]

The report recommends various measures to encourage immigrants to stay.

·        An improvement to the employment permit system in order to facilitate the recruitment of non EU workers.

·        Improved English training for immigrants.

·        A more streamlined system for recognising foreign qualifications.

·        Greater efforts to attract immigrant entrepreneurs.

·        The enactment of a statutory right to family reunification for victims.

·        Improved anti-racism measures in the workplace.

·        Greater commitment from the Gardai to tacking racist incidents

·        Keeping personal tax levels low to avoid scaring immigrant workers.

It is apparent from recent case law; M.M v minster for Justice Equality and Reform & Attorney General[4], Okunade v Minster for Justice, Equality and Reform & Attorney Genera[5]l,  that an urgent reform of our system of asylum application is required.

 Migration has been an obvious element in attempts to recover in the past, and this is not about to chance. However, in contrast to popular belief, this report commands that rather than encouraging our youth and recent graduates to depart from our shores, we should in fact be more encouraging of people arriving to avail of employment opportunities here.

Brophy Solicitors

4.12.12

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[1] Figures sourced from http://www.migrationinformation.org/Feature/display.cfm?ID=740 retrieved 3.12.12 at 10.18 a.m.

[2]Ibid.

[3] Source :http://www.workpermit.com/news/2012-11-01/irish-report-says-immigration-vital-to-economic-success. Retrieved 3.12.12 at 10.44 a.m.

[4] Case C- 277/11 M.M v minster for Justice Equality and Reform & Attorney General, 22 November 2012.

[5] {2012}IESC 49.