Increase in EU funding to help countries cope with migration flows

Although the movements of persons into, out of and within each EU State vary, each society shares similar migration challenges and opportunities. The EU is an area without internal borders, therefore migration bears great significance. MEPs voted on 6 February to increase EU money to help these countries cope with migration flows. Overcrowded refugee centres lacking even basic supplies have become a more frequent sight in many EU border-states in the wake of the crisis. The European Parliament adopted crucial proposals that enable an increased co-financing rate for Member States subject to financial support on actions concerning the management of migration flows (European Refugee Fund, the European Return Fund and the European Fund for the Integration of Third-Country Nationals and External Borders Fund).

The proposal:

·         Covers 4 funds making up "Solidarity and management of migratory flows" framework: European Refugee Fund, European Return Fund, European Fund for Integration of third-country nationals and External Borders Fund.

·         Increased co-financing of the migration-related funds for member states included in the financial support mechanisms.

·         Co-financing (part financed by the EU) to increase 20 percentage points to 70%. For countries covered by the cohesion fund the increased rate would be maximum 95%.

For further information, the following link provides access to an interview with Finnish Liberal MEP Nils Torvalds, who is responsible for steering the plans through Parliament: http://www.europarl.europa.eu/news/en/headlines/content/20130201STO05566/html/More-funding-for-refugees-The-way-we-handle-asylum-seekers-is-unacceptable

Brophy Solicitors 

12.02.13 

H.I.D., B.A. v Refugee Applications Commissioner & others

The European court of Justice recently did not uphold a case for asylum brought on the basis of the following arguments: 

The Ministerial Directive of 2003 which sought to give priority to asylum applications from Nigerian nationals, (later revoked in 2010). They contended  this was  incompatible with Article 23(3) and (4) of Directive 2005/85, which contains an exhaustive list of circumstances in which an accelerated procedure may be used and does not include either prioritising or accelerating the examination of applications made by one group of nationals by reference to their nationality. In addition it was submitted this infringes also the prohibition of discrimination on basis of nationality.

The possibility of lodging an appeal before the Refugee Appeals Tribunal against the ORAC report may not comply with the obligation set out in Article 39 of Directive 2005/85 to guarantee ‘the right to an effective remedy before a court or tribunal’. It was submitted that the Refugee Appeals Tribunal is not ‘a court or tribunal’ within the meaning of Article 267 TFEU.

Basic facts of the case:

In each of the two cases in the main proceedings, an asylum application was filed in Ireland by a Nigerian national who had entered Irish territory in 2008. In the case of Ms D., the ORAC dismissed the asylum application in its report dated 15 August 2008 pursuant to section 13 of the Refugee Act. In the case of Mr A., the ORAC, in its report dated 25 August 2008, issued a negative recommendation in respect of the application of that Nigerian national, which was confirmed on appeal by the Refugee Appeals Tribunal by a decision of 25 November 2008. 

The findings of the case consisted of the following:

It follows from the foregoing that Article 23(3) and (4) of Council Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

It follows that the Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law and rules on the evidence submitted to it, in relation to which it enjoys discretion. It must be concluded that the criterion of independence is satisfied by the Irish system for granting and withdrawing refugee status and that that system must therefore be regarded as respecting the right to an effective remedy. Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

To access the full judgment: http://www.bailii.org/eu/cases/EUECJ/2013/C17511.html

Brophy Solicitors

06.02.13 

Failure to conform with Work permits and Vocational Training Commitments.

A review of Ireland’s compliance with the European Social Charter has found that fees for work permits are ‘excessive’ while there is a lack of equality of access to vocational education. A Council of Europe report found that Ireland is failing to conform with international commitments on access to work and vocational education for migrants, according to the Immigrant Council of Ireland.Work permit fees have dramatically risen from the range of €65-500 in 2007 to the present levels of €500-2,250. The Committee ruled the fees being charged are excessive and are likely to prevent or discourage foreign workers from gainful employment as well as leaving them open to exploitation my employers who are unwilling to pay the fees. This increase is on top of the doubling of the immigration registration fee for many people from outside the European Economic Area implemented last November. These fees are being applied to people who are legally here and contribute to our economy.

This report shows that there is much work required to ensure Ireland is more welcoming to those who wish to contribute to our society. The failure to ensure equality of access to vocational education and grant support as highlighted in the report makes for disturbing reading and shows a lack of equality which must end. It is necessary that the Government ensures Ireland becomes fully compliant with international commitments made under the European Social Charter, so as access to work and education is fair and open to all.

To access the statement of the Immigration Council in relation to the report: http://www.immigrantcouncil.ie/media/press-releases/630-council-of-europe-report-raises-serious-equality-issues-ireland-fails-to-conform-with-work-permit-and-vocational-training

Brophy Solicitors

05.02.13

EU TREATY RIGHTS – DELAYS IN ISSUING STAMP 4 PERMISSIONS/TEMPORARY PERMISSIONS

The Irish Immigration Blog

We have recently encountered cases where a non EU National is entitled to make applications for  (1) a residence card (EU FAM Card), (2) a Permanent Residence Certificate according to Article 16 of the Directive  and (3)  an application for residency based on his/her parentage of a Union citizen child.  The non-EU national will be either separated or divorced from his/her spouse. 

In one such case, our client, lawfully residing in the State for 12 years, firstly as a student and then as an EU Family member was eligible to apply under all three categories.  Despite having submitted clear documentation to evidence that his wife exercised her EU Treaty Rights for 5 years and also having submitted evidence that she is currently exercising those rights in the State, his applications for an EU Fam card and permanent residence to which he is entitled were refused on failure to submit sufficient documentation which included a P60 for a particular year and a further proof of residence, both in respect of the Union citizen.   On submitting a review of the decision which clearly overlooked all other evidence, supporting documentation and legal submissions, 7 weeks later, a letter from the EU Treaty Rights Section provides for a temporary Stamp 4 while our client’s review is pending. During this time, our client, having worked with the same company for 12 years, was advised by his employer that his contract would have to be terminated.  Our client is now unemployed but subject to maintenance payments in respect of his child who resides in the State with his mother.  This reflects the reality of a situation when such applications are refused for the most minor, disproportionate reasons coupled with the Department’s refusal to issue temporary Stamp 4 permissions within a reasonable time in order to satisfy employers and to provide evidence of one’s lawful status.  Our client is among many who face unemployment as a result of a failure on part of the Minister to produce a temporary Stamp 4 in such matters.  The Minister is pushing such applicants into a situation where they will be reliant on the State for financial assistance.   This week, we have encountered at least three cases whereby applicants have lost their jobs as a result of failure to issue a stamp 4/temporary stamp 4.  This is a great injustice and is extremely worrying for those who are lawfully entitled to reside in the State and are in full time, permanent employment.

BROPHY SOLICITORS

01.02.13

NATURALIZATION POST MALLAK – WHAT IS REASONABLE JUSTIFICATION?

After the Supreme Court’s judgement in the case of Mallak v The Minister for Justice and Equality (see blog postdated 7th December 2012),  the question continues to arise when can the Minister legally deny  an applicant for Naturalization the grounds upon which his/her application has been refused. 

On the 13^th December 2012, Minster for Justice, Equity Alan Shatter was asked by was of Parliamentary question what measures the Minister would take to ensure transparency and fairness in light of the Mallak judgement. Further, he was asked whether a review mechanism would be put in place for cases similar to Mallak’s- for persons who had been refused citizenship without being giving a reason. Minister Shatter responded as follows;

“The implications of the judgement of the Supreme Court referred to by the Deputies are being considered in consultation with the Office of the Attorney General and any revised procedures arising will be implemented without delay. The Deputies should note that although the Supreme Court in its judgement quashed the Minister's decision to refuse the application in this particular case, it went on to say that it is not for the Court to prescribe whether the Minister will give notice of his concerns to the applicant or to disclose information on which they may be based or whether the Minister will continue to refuse to disclose reasons for the refusal but to provide justification for so doing. In the particular case it is open to the applicant to lodge a new application.”

If the Minister is going to continue refusing to disclose reasons in justified circumstances, the question of course arises, what constitutes an adequate or reasonable justification for doing so? For example,  would it be reasonable for the Minister to indicate that he is refusing to provide the specific grounds for refusal because this would have adverse consequence for matters of State security?

A recent case of Brophy Solicitors highlights some of the problems. Our client has been refused Naturalization on a number of occasions, each time without reason,  despite the fact that our client  appears to fulfil all of the necessary requirements for naturalization in Section 15(1) of the Nationality and Citizenship Act 1956.  He is currently awaiting the determination of his fourth application. In light of Mallak, we wrote to thee Minister requesting that the grounds for the previous refusals be provided to our client so that they can be addressed prior to the determination of his current application. The Minister’s response was that it is a matter for the Minister to determine what procedures would be applied in the Naturalization process in accordance with the Mallak judgement. Thus, in respect of this case, the Minister refused to provide the reasons for the previous refusals for the reason that the Minister is not in a position to divert resources towards previous applications.

It is of most concern to us that it appears from this case that it is the Minister’s interpretation of the Supreme Court’s reasoning in Malak that he can continue to refuse to provide applicants with the grounds for refusal for reasons involving only administrative difficulties such as “scarce resources”. 

Brophy Solicitors

25.01.13