DIRECT PROVISION ACCOMMODATION IN IRELAND – A BREACH OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND VALUES

Writing in Jesuit Quarterly Studies this week, the Ombudsman Emily O’Reilly has heavily criticised the system of direct provision for asylum seekers. According to O’Reilly, the system is in breach of the Irish Constitution and international human rights law as there is a real risk of child abuse and a lack of protection of family rights. Delays in processing asylum applications result in some families living in direct provision centres for years. The Ombudsman argues that the centres are suitable only for very short periods of time and not for long-term residency.

Nearly 5,000 asylum seekers currently reside in direct provision centres and over 1,800 of those are children. Meals are prepared for the asylum seekers, meaning that they have no control over their diet, families are often required to share rooms with other families, leading to a lack of privacy, and each person receives a sum lower than €20 a week to live on, with children receiving less than €10 per week. The Ombudsman also notes that enforced idleness is common, as asylum seekers cannot work while there asylum status is under review. 

In her investigation into a complaint made by one family, O’Reilly found that they had been separated due to a failure on the part of the HSE to implement a Social Welfare decision. An African woman and her two daughters who came to Ireland to seek asylum were placed in a direct provision centre and lived there for fifteen months. The family left because of serious concerns over the mental health of one of the daughters, who had attempted to take her own life. Her mother felt that the conditions in the centre they were living in were having a negative impact on her child’s mental health and decided to leave the centre on this basis. The child was placed in foster care because the family had no income. Initially, the mother’s application to receive Social Welfare was rejected, but following a lengthy appeal process, she was eventually approved to receive payments. However, the decision was not implemented, which had adverse consequences for the family, who are still separated. The Ombudsman has criticised the lack of implementation of the decision in strong terms.

O’Reilly believes that the conditions described are in breach of Article 41.1.1 of the Constitution, which protects family rights and Article42A.1, which was inserted as a result of last year’s referendum to protect children’s rights. In her article, the Ombudsman notes that while there are some contradictory Supreme Court rulings, there is general consensus that the natural rights provisions of the Constitution apply to all people in the state and not only to Irish citizens. 

Regarding international human rights, FLAC has commented that ‘the direct provision system does not provide an environment conducive to the enjoyment or fulfilment of the most basic human rights, including the rights to health, food, housing and family life. It also has negative repercussions on the right to education and the right to work as well as to freedom of expression, freedom of movement and freedom of association.’ Ireland is party to a number of international human rights conventions, including the European Convention on Human Rights and the International Convention on the Rights of the Child, and therefore is required by law to respect the rights of all people as listed by FLAC.

At Brophy’s, we have encountered appalling reports from clients living in such accommodation. We welcome the Ombudsman’s review and call for the Minister to take immediate action to review the living conditions in Direct Provision centres around Ireland. 

Katie O’Leary

Brophy Solicitors

EU STATES GRANTED PROTECTION TO OVER 100,000 ASYLUM SEEKERS IN 2012

Asylum decisions in the EU27 Member States granted over 100,000 asylum seekers protection in 2012.

The EU 27 Member States granted protection to 102, 700 asylum seekers in 2013, compared with 84,300 in 2011. The largest groups of beneficiaries of protection status were citizens from Syria, Afghanistan and Somalia.

Ireland had a total of 1625 decisions; of these 935 were first instance and 690 were final decisions on appeal. The largest groups granted protection status were from Syria (the Irish Government recently announced an extra €1.6 million of government funding for Syrian refugees which will be divided between Concern, Goal and Oxfam for the provision of humanitarian assistance), Somalia and Pakistan.

The total of positive decisions amounted to only 140; 115 of which were refugee status and only 30 constituted Subsidiary Protection. There were no successful decisions in relation to Humanitarian Leave. 

The EU average approval rate equates to 25.2%. Ireland unfortunately has the significantly lower rate of 8.6%.

These statistics, especially in comparison to some of our European neighbours, highlights the need for an overhaul of the refugee system in Ireland. The significantly below average approval again underlines the serious problems in the decision making process. 

Furthermore, the low success rate for subsidiary protection further emphasises the need to amend our subsidiary protection procedure so it is in line with that of the other EU Member States.

To see the statistics concerning all Member states follow the below link: http://europa.eu/rapid/press-release_STAT-13-96_en.htm?locale=en

Brophy Solicitors

4th Annual European Commission Report on Immigration and Asylum

We took some time out this week to review current trends in immigration law amongst the Member States. The European Commission Report confirmed useful statistics and gave us food for thought. The report analyses immigration patterns in Europe and discusses the implementation of the Common European Asylum System. According to the report, there has been a 10% increase in asylum applicants compared to 2011. This increase is partly due to the conflict in Syria, which has displaced huge numbers of Syrian nationals. We have noticed an increase in queries from Syrian nationals who are normally seeking information on family reunification with family members living in Ireland. The report also notes that there are almost twice as many third-country nationals living in the EU compared to the number of EU citizens who live in another member state. Last year, over 300,000 people were refused entry to the EU. 

EU policy on immigration and asylum focusses on a few main areas. These areas include attracting talent from third countries to the EU, efforts to adopt a harmonised, pan-European asylum system and the eradication of human trafficking.

Measures implemented to attract highly qualified professionals to the EU include the adoption of the EU Blue Card Directive, which took effect in 2009. This measure will be reviewed later this year. According to a Commission Communication from 2012, a smarter visa policy could contribute to economic growth. This would speed-up, facilitate and reinforce border check procedures for foreigners travelling to the EU.

The report laments increasing incidents of xenophobic violence, noting that integration of immigrants is essential to the success of policies to attract highly qualified employees into the EU workforce. The report also note that young people with an immigration background are significantly more likely to become ‘not in employment, education or training’ in comparison with their contemporaries. It is also argued that family reunification plays a part in promoting integration. 

According to the report, a Common European Asylum System will lead to fairer, quicker and better quality asylum decisions and special needs of vulnerable people will be better taken into account. This will involve greater protection of unaccompanied minors and victims of torture. The measures are aimed at ensuring fundamental rights of asylum seekers are protected, especially the principle of non-refoulement. 

The European Asylum Support Office, along with the Commission, works to tackle the biggest obstacles to solidarity. These obstacles include the Greek National Action Plan on Asylum and Migration, increasing numbers of Syrian refugees seeking asylum in Europe and the relocation of beneficiaries of international protection within the EU. 

The report also looks at the measures being taken to eradicate human trafficking from third countries. The report notes that victims from outside the EU mainly come from Nigeria and China. The Commission launched the EU Strategy towards the Eradication of Trafficking in Human Beings in 2012. 

With regards to tackling irregular immigration, the report notes that bodies are working to tackle this at pressure points, including the Greece-Turkey border. Efforts are also under way to implement a common returns policy for irregular immigrants.

Brophy Solicitors

MUSLIM MARRIAGE RECOGNITION IN IRELAND

The media is currently filled with discussion of marriage rights and recognition, not least because of the historic US Supreme Court ruling yesterday on the Defence of Marriage Act in California. Marriage is something that is deeply ingrained in religion and culture and marriage practices vary around the world. In Ireland, the struggle for marital recognition is not confined to the LGBT community. In Muslim societies, culture, tradition, customs and formalities are often very different to what Ireland is used to or accept as forming what we recognise to be a valid marriage. This poses a number of difficulties for couples who now live in Ireland and whose marriages or divorces were carried out under a different set of rules. 

Legal recognition in Ireland of Islamic marriage practices can have far-reaching consequences for family reunification in immigration law. Examples of the practices that prove problematic in Irish law include polygamous marriages and Muslim divorce. In some Islamic countries it is permissible for a man to have multiple wives or to obtain a unilateral divorce without governmental or judicial involvement. 

Academics have noted three stages to the recognition of foreign marriages in Ireland. The first of these is capacity to marry, and a person lacks capacity to marry if they have a prior marriage that is still valid. The second required element is that the marriage was legal in the jurisdiction where it was celebrated. Thirdly, the marriage must not be unrecognisable from the Irish idea of marriage. 

In the case of H v A it was held that the polygamous marriage of a Lebanese man in his native country couldn’t be recognised under Irish law. However, if a marriage is potentially polygamous but monogamous in practice then the marriage can be recognised in Ireland. In Hamza v Minister for Justice Equality and Law Reform it was held that a couple who were married under a law that allowed polygamy but weren’t parties to a polygamous marriage could have their marriage recognised. 

However, the law on polygamy is not without anomaly. As counsel for the respondent pointed out in H v A, if a man is married to more than one woman in his home country, the courts will deem that those marriages are null and void. However, if a man marries one woman in his home country and then marries another woman in Ireland then the latter marriage will be held to be void. 

The courts have not yet adjudicated on whether a talaq, a unilateral divorce obtained in an Islamic country, will be recognised under the Domicile and Recognition of Foreign Divorces Act 1986. S5 (7) of that Act refers to the necessity for certain proceedings for a divorce to be valid but it remains to be seen whether the procedure for obtaining a talaq will meet these requirements, as the divorce is obtained unilaterally without the involvement of state agencies.

Both of these situations have an impact for family reunification in immigration law. In Irish law, a person who has successfully sought asylum can apply for a visa for their spouse to live in Ireland. If Irish law does not recognise the validity of their marriage, this will clearly thwart the application process. For these purposes it seems clear that a polygamous marriage will not be allowed, whereas a potentially polygamous one will be. More clarity on the status of Islamic divorce would be welcome, as some clients of Brophy Solicitors are left in a state of uncertainty about whether their second marriage will be recognised as valid for the purposes of reunification. We are receiving more and more requests to appeal visa refusal decisions where applicants have been refused permission to join their Irish/lawfully resident spouse based on the fact that their marriage is not a valid marriage. This includes cases where the applicant and their spouse have children together.

Brophy Solicitors

CASE ANALYSIS: DOS SANTOS – DEPORTATION AND CONSTITUTIONALITY OF SECTION 3 OF THE IMMIGRATION ACT 1999

Mr Justice Colm Mac Eochaidh recently granted an interlocutory injunction restraining the deportation of a Brazilian family in the case of Odenis Rodrigues Dos Santos & Ors v Minister for Justice and Equality. He also granted leave to seek judicial review. The judgment was handed down on the 30th of May and gave consideration to international and domestic law. 

The case concerned a family who have been living in Roscommon Town. Mr Dos Santos arrived in Ireland in 2002 and his wife and children joined him in 2006 and 2007. Since then the children have attended school in Ireland and settled into Irish society. In March 2012, the Minister for Justice issued deportation orders in respect of the family.

The applicants submitted that the Minister didn’t find the correct balance in issuing the order because he focussed too heavily on their immigrant status instead of looking at the extent to which they had assimilated into Irish society and the amount of time that they had spent in the country. They claimed that the Minister’s actions showed disregard for the UN Convention on the Rights of the Child. The argument was also made that s3 of the Immigration Act 1999 is unconstitutional because of the fact that a deportation order is effectively a lifelong ban from entering Europe. 

Representatives of the Minister for Justice responded by arguing that the applicants were non-nationals who were illegally in the state and therefore should be deported. They also submitted that there was no allegation of threat of serious harm to the applicants if they were returned to Brazil and therefore there was no reason for the court to restrain the deportation. 

In coming to the conclusion that the applicants’ deportation should not take place before a full hearing of matters, Mr Justice Mac Eochaidh looked at the manner in which the Minister and his officials considered the circumstances of the child applicants. He said that the test to be applied was whether the order would interfere with the applicant’s right to private and family life, and if it did, that the interference had to be proportionate to the requirements of a democratic society. This test was created in the English case of R (Razgar) v Home Secretary in 2004. Discussing the application of this test, the judge referred to other decisions of the court which looked at the impact of deportation orders on children. He said that there was strong precedent from the cases of Oguekwe v Minister for Justice and E & Anor v Minister for Justice that the Minister had to take consideration of the best interests of the child in coming to the conclusion to make a deportation order. He noted that the Minister had to consider all matters put before him by the parties but was not obliged to make enquiries outside of the documents submitted to him. 

The judge discussed the impact of the UN Convention on the Rights of the Child, which has been ratified by Ireland but not implemented into Irish law. He came to the tentative conclusion that the Convention was applicable in situations where there was no conflicting principle of domestic law. He held that because there was no conflicting principle of law in the Immigration Act 1999, that the Convention was applicable in immigration cases. Article 3 of the Convention provides that decisions affecting children shall be taken by reference to the best interests of the child. In view of the number of children and the age range and the varying impacts deportation might have on them Mr Justice Mac Eochaidh came to the conclusion that the deportation should be restrained. 

The judge did not draw any conclusions about the constitutionality of s3 of the Immigration Act 1999.

Brophy Solicitors

BROPHY SOLICITORS IS PROUD TO SUPPORT THE IRISH REFUGEE COUNCIL’S FUNDRAISING EVENT TO MARK WORLD REFUGEE DAY

On Saturday 22nd June the Irish Refugee Council is hosting a fundraising evening – a medley of entertainment featuring music, prose, art and poetry. The event, which will be held at the Unitarian Church on Stephen’s Green, will come at the end of a week of activities across Ireland and beyond marking World Refugee Day which is on June 20th. 

A variety of artists from the Nigerian, Iranian and Sierra Leonean communities among others, and from Ireland, along with a number of young people performing their own composition with headliner Ben Okafor will take the stage. 

Tickets are €20 with a limited number available to students and the low-waged at a reduced price of €10. Funds raised will go towards supporting the work of the Irish Refugee Council and in particular, our work with young people seeking asylum in Ireland.

The event will commence at 7.30pm and all are welcome.

Sarah Henry

Brophy Solicitors

Information Notice for Clients about Subsidiary Protection Applications

On the 23rd of January 2013 Mr Justice Hogan delivered judgment in the case of MM v Minister for Justice Equality and Law Reform in the High Court. This judgment has had a significant impact on applications for subsidiary protection in Ireland. 

Applicants who are unsuccessful in their asylum claim can make a subsequent application for subsidiary protection to the Minister for Justice and Equality. In MM, it was found that the Minister relied entirely on the findings made by the Refugee Appeals Tribunal at the asylum application stage in coming to the decision that the applicant would be refused subsidiary protection. Mr Justice Hogan held that the Minister failed to afford the applicant a fair hearing because he made no separate and independent adjudication. He noted that his decision would have far-reaching consequences for the current subsidiary protection programme.

Brophy Solicitors currently have a number of clients who are applying for subsidiary protection. Some clients have been waiting in direct provision centres for up to five years awaiting a decision on their status and they are growing increasingly anxious about the result of their application. The decision in MM has had the impact of delaying decisions for applicants even further as the Irish Naturalisation and Immigration Service (INIS) have to devise a new system for processing applications in line with the judgment. We are also aware that the High Court has granted leave to issue judicial review proceedings in cases with already lengthy delays. 

In correspondence with Brophy Solicitors, the Department has requested that our clients ‘bear with [them]’ until ‘[they have] completed the work necessary toward putting the new procedures in place.’ They gave an assurance that all of our clients who have made applications remain on file and will be dealt with as speedily as possible once the new system is in place. This is worrying for some of our clients who experience delays of up to 5 years. 

The Minister spoke about the matter in response to a parliamentary question on the 11th of June 2013. He said that the MM case was under appeal to the Supreme Court but that INIS was working on devising a system for applications in the interim. He also advised that he is hoping to re-publish the Immigration, Residence and Protection Bill under which ‘it is envisaged that applications for asylum, subsidiary protection and ‘leave to remain’ will be dealt with as a single procedure.’ He advised that these legislative provisions are being given priority attention and that once they are in place, applications will be dealt with in a ‘timely manner.’ 

Many of our clients have been give the option to withdraw their Subsidiary Protection so that INIS can commence a speedy determination of their pending Leave to Remain applications. 

Depending on the Applicant’s circumstances, this might be a good option and many clients who are waiting for up to five years or more want to avail of the quickest route in obtaining a decision. Nonetheless a positive outcome in every case is not indicated by INIS and applicants should note that a quick decision does not necessarily mean a positive decision. The difference between the two applications and the impact of a decision to withdraw a Subsidiary Protection case must be carefully explained to each client who must make an informed decision. 

Katie O'Leary and Sarah Henry

Brophy Solicitors

CASE ANALYSIS : Y.A-E v Minister for Justice (7th May 2013, HC, Mr Justice Mac Eochaidh)

DECISION MAKING PROCESS RAT

In this decision in the High Court, Mr. Justice Mac Eochaidh held that s16(16) of the Refugee Act, which sets out the matters which the Refugee Appeals Tribunal (RAT) must consider when making a decision on an appeal, is not an exhaustive list. It was also held that, where a RAT decision is remitted, the applicant may have to be notified that the RAT may remove documents from the file.

The case involved a Sudanese national from the Darfur region who first applied for asylum in Ireland in 2004. At the centre of this case was the failure of the RAT to take into account a language analysis report which supported the applicants claim for asylum. In light of the failure to take this information into account the applicant’s case was remitted to the RAT for a new decision, however the RAT removed the language analysis report from the applicant’s file. The legality of the removal of this information from the applicant’s file was challenged.

The Minister and the RAT argued that the applicant’s challenge was unfounded on two grounds. First, it was argued that the RAT was entitled to remove documents from an applicant’s file following a remittal in order to “cleanse” the file of any possible bias or prejudiced information which may have been included in the file by the previous Tribunal Member. Secondly it was submitted that s16(16) of the Refugee Act 1996, which sets out the matters to which the RAT must consider in making a decision, does not include reports obtained by the RAT under s16(6) of the same act and therefore the RAT had no obligation to consider the language analysis report.

Mac Eochaidh J upheld the applicant’s complaint and remitted the decision to be considered by the RAT again. He ordered the inclusion of the language analysis report in the applicant’s file. The decision was based on the following grounds:

1. The Court held that the RAT is entitled, in principle, to remove documents from an applicant’s file when the decision is being remitted. This applies regardless of whether the case is remitted following the quashing of a RAT decision by the court or on a more informal basis (for example upon agreement of the parties). However in this case it was held that the removal of the document in question, the language analysis report, led to a significant injustice. The judge held that the applicant was entitled to presume that the report would be considered in the new appeal in light of the fact that the applicant’s case was remitted because of the failure of the RAT to consider the report in the first place. Furthermore it was noted that the applicant was not aware of the ‘cleansing’ policy of the RAT. He therefore had no opportunity to apply to the court to ensure that the document was considered in the new appeal which led to the RAT making a decision without considering a crucial piece of evidence.
   
2. The court held that the list of matters that the RAT must consider in s16(16) of the Refugee Law Act 1996 was not exhaustive. Therefore the RAT is not precluded from considering a document obtained by the exercise of its s16(6) powers and, in certain circumstances, may be even be obliged to consider matters not listed in s16(16). The Court noted that the RAT can only use s16(6) to request extra information from the Refugee Commissioner when it considers the information necessary for it to enquire whether a person is a refugee. The court reasoned that to interpret s16(16) in such a way that the RAT could not consider information which had been deemed necessary to assess an applicant’s refugee status would ‘make a nonsense’ of s16(6). 

It is also worth noting the strong criticism of Mac Eochaidh J at the end of his judgment where he noted that the excessive delay of 10 years in this case could be considered a significant injustice, regardless of the fact that the delay was not caused by a deliberate act of any person or body.

Brophy Solicitors

IT’S OUR RIGHT TO MARRY! IRISH REGISTRARS CONTINUE TO WRONGLY REFUSE COUPLES THEIR RIGHT TO MARRY

In a short space of weeks, we received a number of complaints from aggrieved clients who, having served their notification of intention to marry, were refused permission to marry by local registrars. The cases concern EU nationals and their non-EEA partners who contacted us in a state of distress and anxiety having been advised that an objection to their marriage was raised and that their marriage would not be going ahead as planned. 

In 2011 we issued proceedings regarding a similar situation involving an EU national and her husband who suffered sheer humiliation and deep distress when an objection was lodged in respect of their marriage on the morning of their wedding!! The bride and her husband-to-be were just about ready to commence celebrating their marriage before family and fiends, many of whom had flown to Ireland from abroad for the occasion. But the actual marriage took place months later following a court settlement resulting in the objection being lifted. Their day was ruined and their financial loss was significant. 

Two years later we see the problem arising again although we managed to tackle this head on without resorting to the High Court. Our clients were advised that under the provisions of section 51(2) of the Civil Registration Act, 2004 that a registered solemniser shall not solemnise a marriage unless he/she is satisfied that the parties to the marriage understand the nature of the marriage ceremony and the declaration that they accept each other as husband and wife. In this case the registered solemniser was not satisfied that our clients understand the nature of their marriage ceremony and the declarations that they accept each other as husband and wife and you felt that an ‘offence’ may have been committed under section 51(2). An Garda Siochana were notified and asked to investigate a possible offence under this section. Which offence was the registrar referring to? This section does not refer to any offence that would have been applicable to our clients. The legislation as it stands does not cover any offence indicated by the Registrar. 

The situation was previously fleshed out in court by Justice Hogan in Izmailovic & Anor -v- Commissioner of an Garda Siochana & Ors [2011] IEHC 32 when the marriage of a couple was intercepted by the State and the groom arrested on the grounds that the Gardai believed his marriage was one of convenience. Justice Hogan concluded as follows: ‘ I quite appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory, then it is, of course, in principle open to the Oireachtas and, if needs be, the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult ones and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and, again if needs be, the Union legislature can resolve.’ 

Following a detailed complaint sent to the Registrar on behalf of our most recent clients in this matter, the objection was quickly lifted and they are free to marry. Although delighted with the outcome, the stress and anxiety suffered by our clients was considerable and is something they now want to put behind them. 

Sarah Henry

Brophy Solicitors

NEW CHANGES IN EMPLOYMENT PERMIT APPLICATIONS

The Irish Immigration Blog

The Department of Jobs, Enterprise and Innovation has set out an updated list of changes relating to employment permits. 

‘Following a review of the Employment Permits system and the current skills needs in the labour market, Employment Permits policies have been updated to ensure a balanced and renewed policy rationale for Employment Permits to facilitate access to skilled workers where there are skills shortages in the Irish and EEA labour market.

The primary changes are outlined below and will be made effective for all applications considered from 10th April 2013 onwards. It should be noted that any applications received before 10th April will be processed in line with the revised rules which are inherently designed not to disadvantage such applications.

1. The Highly Skilled Occupations List (previously referred to as ‘eligible occupations list for Green Cards’) has been broadened and updated to correlate with known shortages of key skills in the labour market. Whereas before eligibility in respect of a particular job title was confined to a particular sector, the highly skilled eligible occupations are now permissible across all sectors in recognition that a particular skill in short supply will be experienced across all sectors which require that skill.

2. The labour market needs test i.e. the requirement for advertising with the Department of Social Protection’s employment services (previously referred to as FÁS) has been reduced from 8 weeks to 2 weeks and the requirement to advertise in a national newspaper has been reduced to 3 days. Whereas before there was a further requirement to advertise in a local newspaper there is now an option to advertise in a local newspaper or on a job’s website for 3 days.

3. The Ineligible Categories of Employment for Employment Permits list of occupations has been updated to cater for particular shortages in relation to certain occupations involving the necessity of being able to communicate in a non-European Economic Area language.

4. The employment permits applications forms have been amended to reduce the requirements to submit additional documentation. In tandem with this there will be greater focus on the random checking of employment permits by the National Employment Rights Authority (NERA) to ensure adherence to the relevant legislation.

5. An initiative has been taken by this Department and the Department of Justice and Equality to provide a more coherent service across both the Employment Permits regime and the Visa regime. Certain categories of non-EEA immigration permission holders, who have been offered employment in an occupation included in the Highly Skilled Occupations List will now be allowed to apply for an Employment Permit, whilst already legally residing in the State. Also the Department of Justice and Equality (INIS) intends to facilitate job interviews for highly skilled candidates and provide measures to permit persons to be employed in the State on a short term basis i.e. between 14 and 90 calendar days. Further details are available on the Department of Justice and Equality (INIS) website.

6. Current holders of Intra-Corporate Transfer Provider Employment Permits and Contract Service Provider Employment Permits can now apply for other types of Employment Permit subject to the normal criteria.

7. The current employment permits website has been updated to improve information and customer service.

8. For IT graduates of foreign colleges and for technical or sales support roles with non-EEA language requirements, the remuneration threshold is reduced from the current €30k p.a. to €27k p.a. in respect of employment permits applications under the Work Permits category.

9. To assist clarity, income requirements will be based on ‘remuneration’ rather than ‘salary’ for all types of employment permits where items of remuneration are demonstrated on payslips or P60s.

10. The appeals process will be more efficient and transparent and will now, instead of reviewing the application afresh, only reference the stated reasons for a refusal as provided in a decision to refuse.

11. Changes have been made to our internal procedures to reduce the time it takes to process applications with a commitment to speeding up processing by at least 10 days.

12. To facilitate queries in relation to the new procedures, the Employment Permits call centre will extend its normal opening hours.

These changes mark the beginning of a programme of change now underway. It is intended that over the course of the next 6 months further enhancements will include:

• the use of a single application form which will electronically guide the applicant through the form;

• migration of website information to a new platform and better information linkages with the relevant aspects of the Department of Justice and Equality’s visa regime;

• new Department of Justice and Equality pilot initiatives to be announced in the Summer;

• online querying of an Employment Permit application’s status; and

• expanding the availability of the telephone Call Centre.

In the medium term, the Department also intends to conduct a Business Process Re-engineering review of its processing system in light of proposed legislative changes and to facilitate the development an online applications system.

The changes are engineered to ensure that Ireland has an attractive Employment Permits regime for employers and prospective employees to facilitate access to skilled foreign nationals in areas where there are demonstrable skills shortages especially in the ICT sector. The employment permits regime complements other Government initiatives especially in the education sector aimed at increasing the domestic supply of skilled labour and will therefore be adjusted accordingly over time as and when sufficient domestic supply becomes available.’

Brophy Solicitors

The Irish Immigration Blog

Delays on Issuing Temporary Stamp 4 and EU FAM Five-Year Cards

We have noted considerable delays within the EU Treaty Section which is a cause for concern for many of our clients. Rather than decisions on their applications after 6 months, some have received temporary two month visas and a request for further documents! Original documentation was always returned rather promptly but we have daily requests from clients seeking the urgent return of important documentation which remains with the Department for several weeks. We hope that matters proceed as normal and within reasonable time frames as soon as possible as such delays cause genuine problems for clients who wish to travel, work and maintain their employment in the State.

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