EUTR and Dependent Family Members

CASE SYNOPSIS:

Secretary of State for the Home department V Muhammad Sazzadur Rahman, Fazly Rabby Islam and Mohibullah Rahman – Opinion of the Advocate General delivered March 27th 2012

 

We are frequently encountering cases concerning EU Treaty Rights Law relating to other family members and or so called permitted family members. The concept of dependency is often at the core of such cases many of which include dependent siblings of the spouse of the EU National who has already been permitted to reside in the State in conformity with Directive 2004/38EC. Many of our cases have proceeded to review stage for failure to establish that the non EEA family member is a ‘qualifying or permitted family member’ in accordance with the Directive. In other words, dependency has not been established. One of our cases concerns a 23 year old male suffering from brain damage pursuant to a life threatening operation he underwent in the State. His elder brother, who is the spouse of an EEA national lawfully residing in the State, together with his wife fully support the applicant both financially and emotionally. His medical bills and expenses are fully discharged by his brother and his brother’s wife who provide accommodation, money and full-time care to the applicant who remains unwell. We are currently awaiting a decision on whether the applicant will be permitted to remain in the State as a family member or a dependant on the EEA national and as a dependant on the spouse of the EEA national.

 

 

We draw your attention to last year’s decision of the ECJ in Rahman concerning the notion of a ‘dependant’ and Article 3 (2) of the Directive:

 

This case reviewed the conformity of UK legislation with Directive 2004/38EC.

 

The case involved a Bangladeshi national who married and Irish national who was working in the UK. His brother, half brother and nephew applied for residence permits in the UK as family members of a national of an EEA state.

 

Their original application was rejected by the Secretary of State for the Home Department (SSHD) and they appealed to the immigration judge who granted the application on the basis that they were dependants and directed that their case be considered in line 17(4) of the 2006 regulations which provides for the decision maker to exercise their discretion in such matters. The SSHD sought reconsideration of the case by the upper tribunal which decided to stay the proceedings stating that whilst the case raised a factual question as to whether or not there existed a situation of dependency, it also raised legal problems, the resolution of which required a clear understanding of the scope of the provisions of EU law. A number of different issues were raised.

 

 

The core issue was whether or no article 3(2) of the Directive requires a Member State to make legislative provision to facilitate entry to and or residence in a member state to the class of other family members who are not nationals of the European Union who can meet the requirements of article 10 (2) of that Directive?

 

Article 3(2) of the Directive stipulates that:

 

“ Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

 

Any other family members, irrespective of their nationality (…) in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union Citizen.

 

The Partner with whom the Union Citizen has a durable relationship, duly attested, The host Member State shall undertake and extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. “The court held that the ‘fundamental right to private and family life may, in principle be relied on by all categories of person mentioned in Article 3(2) of Directive 2004/38.’ The Court concluded that in this case Mr Rahman’s private and family life had been impaired by the failure of the UK authorities to issue residence permits to his brother, half brother and nephew.

 

It so follows that Art 3(2) ‘must be interpreted as requiring Member States to adopt the measures necessary to facilitate entry and residence in their territory for all persons coming within the scope of that provision. Additionally, the primary law of the EU ‘precludes a member state from refusing a national of a non member country who comes within the scope of that provision residence in its territory in the case where that national wishes to reside with a member of his family who is a Union citizen, where such a refusal has the effect of unjustifiably impeding the exercise of the Union citizen concerned to move freely within the territory of the member states or causes disproportionate impairment of his right o respect for private and family life.’

 

The Court surmised that Article 3(2) of Directive 2004 /38 must be interpreted to the effect that:

 

• It precludes national legislation which limits the scope of that provision to other members who resided in the same state as the Union national before the Union national came to the host Member State
• The notion of ‘dependent’ does not imply that dependency existed shortly before the Union national came to the Host Member state and..
• It does not preclude national legislation which makes entry and residence for a national of a non-members country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

 

 

We will keep you posted as to our further developments on cases concerning dependent family members of EU nationals.

Ireland will not benefit from EU Migration Law advancements

The Irish Presidency has advanced important developments to complete the final two legislative measures on the processing of Asylum Claims forming part of the Common European Asylum System (CEAS).

CEAS is provided for in Article 78 of the Treaty on the Functioning of the European Union. It provides that the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection in accordance with the principle of non refoulement and the 1951 Geneva Convention on the Status of Refugees.

The Irish presidency programme outlined the objectives to secure agreements in relation to the Student and Researchers Directive, Seasonal Workers Directive and the Intra Corporate Transfers Directive. The President also aims to establish the Asylum and Migration Fund Regulation, an instrumental part of an overall framework for EU financial support in the field of international security, to contribute to the operational costs at national and EU level of border control.

Proposals for compromise texts on the recast of the Asylum Procedures Directive and the Eurodac Regulation have been approved by Member States. The adoption of these measures remains subject to the approval of the European Parliament and the Council.

Minister for Justice, Equality and Defence, Alan Shatter, Chair of the Justice and Home Affairs Council stated in relation to these developments:

"Completing the Common European Asylum System will be an important milestone towards ensuring the consistent and equitable treatment of asylum seekers irrespective of the Member States in which they present their asylum application. 327,345 asylum applications were received in the EU in 2012, an increase of 7.8% on the previous year. It is vitally important that the Union has a system that ensures that procedures for processing applications are both fair and effective but also robust and not open to abuse. I am pleased that the Irish Presidency has been able to advance discussions with the Parliament and we are now hopeful of reaching an early agreement on this basis."

However, whilst it is evident these developments mark an important progression in the area of migrant reform, it must be noted that Ireland has ‘opted out’ of participating in the revised laws which form part of the CEAS, and not signed up to others including the Reception Conditions Directive. Only Ireland and Denmark failed to sign up to the latter, however unlike Ireland, Denmark has provided the right to work in separate legislation. Consequently Ireland will not benefit fully from this important milestone towards ensuring the consistent and equitable treatment of asylum seekers, placing Irish Immigration laws out of line more now than ever with that of other European countries. 

For information on this item and further developments of the Irish Presidency see: http://eu2013.ie/news/news-items/20130327ceaspr/

Brophy Solicitors 

04.04.13

Lack of Transparent Policy in the Irish Immigration System

Ireland's Immigration rules are mostly comprised of policy that has never come before Dail Eireann. In fact, many policies applied in practice are not even published in policy documents, nor are they made available to the public, and often, an applicant cannot possibly know what policy, if any, will be applied to their individual application. Instead, we have what could be perceived to be a system of ‘hidden remedies’, resulting in widely inconsistent decision making. 

Working in immigration for many years, we see wholly inconsistent decisions being made in respect of all aspects of immigration in Ireland.  We are aware of cases where some children of stamp 1 A holders have received Irish passports, and others have not, based on contradictory findings as to whether stamp 1 is reckonable or not. This week, we have met students who entered the State in 2004 and have been excluded from the 2004 Student Probationary Scheme, because the classes commenced in 2005, while other students on the same course were accepted on to the scheme. 

The lack of clear and transparent policy in respect to visa applications for family members of Irish citizens is of particular concern. Decisions are made in respect of applicant’s fundamental rights, on unclear grounds such as “bona-fides” of a relationship, or “risk of financial burden”. No guidance is provided to the applicant prior to the application on what thresholds they must meet. It certainly appears to us that these thresholds vary hugely between the different Embassies, and the different decision makers. For example, we have obtained a number of positive decisions on Long Stay visa applications for dependant family members of Irish citizens, yet others have been refused on the basis of a stated “policy” not to grant such applications. We have a number of cases in the High Court challenging the refusals for Long Stay visas for the spouses of Irish citizens,  when we know of other cases in the same factual circumstances that have been granted. 

The inconsistent process and criteria for determining naturalisation applications has been well publicized in recent years, and is a major issue for concern for migrant communities. The process is at the discretion of the Minister for Justice, Equality and Defence (the Minister); an opaque process, marked by delay and applications are often refused for minor or trivial reasons. The only available ‘policy’ is that on the INIS website, however this is generally an explanation of the application process, not a statement of the policies applied. Moreover, applications are frequently refused provided no reasoning as to why this is the case.

As lamented by Longmore LJ (DP(United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365), litigants and judges dealing with immigration law feel themselves in an absolute whirlwind due to the speed with which the law practice and policy are changing in this area. This statement is true also to the position in Ireland, where immigration is definitely a permanent and positive reality.

The relevant question to be asked is whether a decision made by the Minister for Justice in respect of a person’s fundamental right (including family life) is lawful, if it is based on a policy that is unknown to the applicant at the time of making the decision? Or if the applicant does not know what the policy is even at the time of decision? Or if the decision is based on a policy that has been applied inconsistently and unfairly? 

These questions were at the heart of the appeal in the House of Lords decision in the UK, the case of R (on the application of Alvi) v Secretary of State for the Home Department) [2012] UKCS 33 (SC), which concerned what could be considered as constituting a rule laid down by the Secretary of State as to the practice to be followed in the administration of granting leaving to remain. Mr Alvi, a national of Pakistan was refused such permission as applied for under the Tier 2 General Migrant Gateway, on the basis that the Secretary of State for the Home Department (the Secretary) was not satisfied Mr Alvi’s earnings were those expected of work at the required skill level, consequently failing to fulfil the requirements of immigration rules for this category.

One of the arguments submitted was that the list of skilled occupations the Secretary was relying on, were not part of the Immigration rules as the ‘codes of practice document’ had not been laid before the Parliament as required by s3(2) of the 1971 Act. Consequently, it was claimed that reliance on this ground for refusal was unlawful.

Lord Dyson considered ‘all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain…’ are ‘immigration rules’ and must be laid before Parliament in accordance with the 1971 act’.

In agreement with this, the Court was unanimous in holding that where a policy set down a mandatory requirement which would lead to a refusal of an application for status under Immigration rules, the Parliamentary oversight procedure at the 1971 Act must be compiled with. As the criteria the Secretary had relied on had not been laid before Parliament as required it was held the Secretary’s actions were unlawful and so the appeal was dismissed.

This decision was approved the more recent case of R (on the application of Munir and another) v Secretary of State for the Home Department [2012] UKSC 32, where it was held that a policy is something distinct from a rule as a policy is not rigid and must be applied to an individual’s particular circumstances. The outcome of these cases essentially confirms the core reasoning of Sedley LJ in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, where he held a criterion applied by the Secretary as necessary or sufficient for the success or failure of an immigration application, will only be valid where the criterion was subject to the Parliamentary oversight provisions of the 1971 Act.

The need for transparency and clarity in relation to the Irish immigration administrative rules and policies relied on by the decision makers is more important now than ever. The Minister, in outlining his key priorities for 2012 declared his intentions to publish the Immigration, Residence and Protection Act, with the hope of enactment in 2013. It is claimed that the Bill will radically reform and modernise the approach taken to the determination of asylum applications for permission to remain in the State. The impending introduction of this new legislation provides the government with a chance to achieve and fulfil its aim of establishing a fair, transparent and strategic immigration system. The Government needs to address the fundamental problems with the current non transparent and inconsistent process in Ireland. These changes are possible to be achieved, and not only will they ensure Irish policy is in line with international practice but moreover could lead to very positive changes for migrants and Irish society in the long term.

Developments in Family Reunification for Refugees - Abdulaziz Ali Mohamed v Minister for Justice and Equality

Failure of the Minster for Justice to establish ‘an objective yardstick’ in relation to establishing economic dependency of family members, led to the quashing of a refusal of Family Reunification in the recent decision in the case of  Abdulaziz Ali Mohamed v Minister for Equality and Justice, delivered on the 14^th February 2013.

The Applicant arrived in Ireland as an unaccompanied minor seeking asylum from Somalia. He was declared a refugee on 19^th October 2007. This case concerned his application for family reunification with his Mother and four siblings under s.18 (4) of the Refugee Act 1996. The  application was refused on the basis that he had failed to establish that his family were ‘dependent’ on him in the narrow sense of being financially dependent, as it was held the financial support being provided by the applicant did not sufficiently meet the requirements of s. 18 (4).

The Court considered that the Minister must identify ‘some objective yardstick by which dependency can be assessed’. It is inadequate to speculate such a standard in relation to Irish norms. As held in the recent judgment of Ducale & v. The Minister [2013] IEHC 25, ‘financial dependency must be seen as a flexible state of affairs’, of which ‘much must depend on what the contribution provides when received in the hands of the recipient.’ Therefore the Commissioner must endeavour to obtain objective information in order to set out a rational basis for such a finding; no such endeavours were noted in Ducale or the present case.

This decision by Clarke J relies on the decisions of Hogan J in R.X. & Others v. The Minister [2010] IEHC 466, and Cooke J in Hassan Sheikh Ali v. The Minister [2011] IEHC 115, citing that the second most common reason for refusal by the FRU section, that is the refugee’s personal circumstances and prospects in Ireland are such that he/she cannot maintain family members in the State, is in fact an invalid consideration in relation to the assessment of dependency (though potentially relevant to the exercise of discretion should dependency be established).

Clarke J in her conclusion affirmed the need for guidelines in relation to this criterion to be outlined, in order to provide clarity and transparency within the currently ambiguous family reunification process. In her conclusion she held:

 ‘It is not for this Court to set down guidelines as to the exercise of Ministerial discretion under s. 18(4) but a system must, sooner rather than later, stop the haemorrhage of scarce resources in defending flawed FRU decisions and instead ensure that vulnerable refugees do not endlessly pursue futile applications, thus depleting their own financial and emotion reserves. If refugees were better informed on what constitutes dependency and that conditions are de facto applied to family reunification applications, their attentions might be better directed towards obtaining language skills, training, qualifications, work experience and ultimately employment in Ireland before applying again for family reunification.’ [paragraph 28]

From this decision, Ms Justice Clarke makes her opinion clear that:

·   The Office of the Refugee Applications Commissioner must attempt to investigate such cases more thoroughly, in order to provide the Court with a rational basis for a finding such as in the case at hand, entail that the ‘dependency’ is not of an adequate standard to satisfy s. 18 (4).

·   A system needs to be adopted to provide a level of guidance in respect to such applications.

We would submit that many of the Minister’s decisions to refuse family reunification to refugees under Section 18 (4) of the Refugee Act 1996 are flawed, as most turn on the point of dependency. If the Minister does not set down clear guidelines as to what constitutes dependency, applicants are denied a fair procedure and effective remedy. It is of great concern to our office to see the inconsistent decisions made in respect of our client’s applications under Section 18 (4). We call on the Minister to follow through on Ms Justice Clarke’s recommendations, and provide a clear and transparent determination process for refugee family reunification applicants. 

Brophy Solicitors
26.02.13

RESIDENCE PERMISSION POST SULAIMON

The Supreme Court judgement in the case of Sulaimon v Minister for Justice Equality and Law Reform, [2012] IESC 63 (2012), delivered on the 21^st December 2012, has created much needed clarity in the Minister’s administrative practice of issuing residence permission to non nationals in the State.

The Supreme Court upheld the High Court’s finding which confirmed that the Mr Sulaimon’s periods of residency in the State were reckonable for Naturalization purposes despite that he was not registered with the GNIB for a short period. This conclusion was reached on the logical basis that the Minister for Justice had issued a letter to Mr Sulaimon granting him permission to remain, and therefore the Supreme Court judges deemed that he was at all times legally resident during the permitted period stated in that letter.   While this seems to be quiet an obvious finding, in fact, it was not so obvious because the Minister of Justice had always argued that Mr Sulaimon’s lawful residence did not commence until the subsequent date on which he registered at the GNIB  - thus having the very significant consequence that he was three days short of the required reckonable residence period for his daughter to be entitled to Irish citizenship by birth.

The Supreme Court judges fully dismissed the Minister’s arguments out of hand. The judges confirmed that the Mr Sulaimon’s first permission was operative from when he received the letter indicating that the Minister had granted him permission to reside. They indicated that this was the only logical conclusion given the wording of Section 9 (1) (a) of the Immigration Act 2004  -

“A register of non nationals who have permission to be in the State shall be established and maintained by registration officers in such a manner as the Minister may direct”

Therefore, a person must already have permission to remain in order to be registered on the Register of Non Nationals by the Immigration officers.

The Supreme Court emphasized that the granting of permission and registration are two separate acts, distinct from each other.  Thus, the letter from the Minister is the grant of permission and the GNIB’s role is to provide the documents evidencing the registration of such permission.

The effect of the Sulaimon case was that the Department of Justice subsequently stopped issuing residence permission letters, in order to reassess their administrative system. Many of our clients have been left undocumented as a result.

Today, we have received the Minster’s new wording in respect of the granting of residence permission in light of the Sulaimon case. The letter was issued to a client of our office who was today granted a three year stamp 4 permission to remain on the basis that he is the de facto father of an Irish citizen child (Congratulations to our client!). The decision letter states that the Minister has granted the applicant residence permission from the date of the letter. It is stated that the residence permission is conditional on a number of factors (which will depend on what basis the residence permission is granted). The letter states that the applicant is required by law (Section 9 (2)(a) of the Immigration Act 2004) to register this permission at his local Immigration Registration Office as soon as possible. The letter states that a failure to register is an offence, and may in itself constitute a ground for revocation of the residence permission.  The letter states that the Immigration Officer will register and issue the applicant with a Certificate of Registration provided they are satisfied the applicant has met the necessary requirements and paid the appropriate fee.  The letter states that the Certificate of Registration, together with the letter granting permission to remain, will entitle the applicant to work without the need for a work permit. Finally, it is stated that the applicant should apply to his local District Headquarters Station for renewal of the residence permission two weeks in advance of the expiration date. 

The newly worded letter makes it clear the legal residence permission now commences at the date of the decision letter. However, on the renewal of this residence permission, the Minister is delegating his power to the GNIB, who will issue the renewed residence permission on behalf of the Minister. Therefore, at the renewal stage, reckonable residence will commence at the date of registration. To ensure no gap occurs in ones continuous reckonable residence when renewing permission to remain, (a matter very relevant to eligibility for Naturalization), it is essential to ensure that registration occurs prior to the expiry of the residence permission.

Brophy Solicitors
21.02.13

Tenth Anniversary of the Dublin II Convention

February 18^th was the tenth anniversary of the Dublin II Convention, that is, the EU regulation which identified which state is responsible for determining asylum. It allows a state to return a refugee applicant to another EU country with which they have a connection, no matter how tenuous and regardless of their reason for applying for asylum in Ireland.

 A European Comparative Report has been published entitled, ‘Dublin II Regulation; Lives on Hold’. It is described as a response to significant developments in the area within which the Dublin Convention applies; in 2011, seminal judgments from both the European Court of Human Rights and the Court of Justice of the EU changed the legal framework within this landscape. EU institutions have also recently reached a political agreement on a redraft Dublin ‘III’ Regulation, which maintains the underlying principles of the Dublin system, whilst introducing substantive reforms to the Dublin system, aiming to increase efficiency whilst respecting the fundamental rights of those subject to it. This was a necessary report; comprehensive information on the technical application of the Dublin II Regulation in a large number of Member States has not been gathered since 2006 – very alarming in consideration of the fact that this is a constantly developing area of law.

The Report questions the reasoning behind the Dublin regulations, a system perceived as frequently failing to achieve its objective of identifying a Member State responsible for the examination of an asylum claim. It finds that a harmonised application of the Dublin Regulation is not realistic; there are vast disparities between the methods of application of the binding criteria within Member States. Asylum seekers under the procedure are often subject to less than adequate reception conditions in Member States frequently resorting to the use of detention to secure Dublin transfers. Cooperation between member States is inconsistent, leading to lengthy delays in identifying a responsible Member State, or even no Member State, leading to a situation of ‘asylum seekers in orbit’. Readmission agreements are sometimes implemented by Member States in a manner that results in evading obligations under the Dublin Regulation and under international human rights law, most notably the fundamental right to asylum.

Improvements in the application of the Dublin Regulation alone will not suffice; as long as there is an ‘asylum lottery’ in Europe, the system will continue to create hardship for asylum seekers. The report calls for a harmonised application of EU protection standards, which meet international and regional protection obligations. The Report asserts that the solution ultimately lies in replacing the Dublin Regulation with an alternative system that ensures genuine responsibility sharing and takes into account meaningful connections between asylum seekers and Member States.

For access to the report:

http://www.vita.it/static/upload/201/2013_02_18-dublin-report_web.pdf

Brophy Solicitors 

20.02.13