DE FACTO RELATIONSHIP VISAS

The permission is conditional on the basis of the relationship.

Non – EEA nationals who are in de facto relationships must have permission to remain in the State as follows:

• A non EEA national whose partner is an Irish national must provide proof of a durable relationship of at least 2 years. If the non EEA national is granted permission to remain they are not required to have a work permit.
• A non EEA national whose partner is an EU national can apply for a residence card if proof of a durable relationship of at least two years. If permission is granted, they are also not required to have a work permit.
• A non EEA national whose partner is also a non EEA national must provide evidence of a durable relationship of at least 4 years. They are required to have an employment permit to work.

The INIS guidelines note that for immigration purposes a person may be considered the De Facto Partner, opposite or same sex, of another person if:

• They have a mutual commitment to a shared life to the exclusion of all others akin to marriage or civil partnership in practice though not in law
• The relationship between them is genuine and continuing
• They live together or do not live separately and apart on a permanent basis
• They are not related by family.

It is stressed on the INIS website to assess the durability of a relationship, it is necessary for the couple to show dated documentary evidence of cohabitation for at least two full years immediately prior to the application. If the couple are not residing together at time of application, compelling reasons only will be considered. Evidence must still be provided of the previous two years, and whilst humanitarian reasons will be taken into consideration there is no guarantee the application will be granted. Mere visits to each over the two year period do not satisfy the criteria. It is vital that the couple intend to reside together permanently, and to reside in Ireland. 

The following link provides access to the INIS detailed list of guidelines: 

http://www.inis.gov.ie/en/INIS/Pages/De%20Facto%20Relationships%20with%20an%20Irish%20National%20or%20Irish%20Resident%20-%20Guidelines%20for%20applicants

SUBSIDIARY PROTECTION APPLICATIONS

We note that the Minister for Justice and Equality has made contact with some of our clients with pending Subsidiary Protection applications advising them as to the new procedure for determination of such applications following the judgement in the MM Case. Responsibility for processing Subsidiary Protection cases has been transferred from the Irish Naturalisation and Immigration Service (INIS) to the Office of the Refugee Applications Commissioner (ORAC). The new procedure is not however in place but implementation is at an advanced stage. As expected, the procedure for applying for this type of protection reflects the asylum application procedure. Whereby clients will apply through ORAC where there will be a personal interview. For existing applicants, there is an opportunity to submit further representations at this stage. If the decision of ORAC is negative, an oral appeal can be made before the Refugee Appeals Tribunal. 

Applicants with outstanding applications are well aware of the fact that they could face a considerable, further delay in having their applications finalised having already been through the asylum application process. Many of our clients feel that they are in a vulnerable position and face the prospect of remaining even longer in State direct provision accommodation which for many is simply inadequate. We shall update our readers further when we receive more information from the Minister regarding the implementation of the new procedure.

Sarah Henry

Brophy Solicitors

Naturalisation Rates in Ireland Amongst the Lowest in Europe

According to recent research Ireland has the second lowest rate in granting naturalisation applications in the EU at just 13%. Despite a citizenship regime which is theoretically more inclusive than many other EU states, only Luxembourg has a lower rate and the average rate across the EU (34%) is over two times higher than in Ireland.

In 2008, the Immigrant Council of Ireland published research that highlighted the fundamental extent to which immigration status affects people’s ability to make longer-term plans, participate in Irish society and, ultimately, their successful integration. This point was emphasised in connection with the importance of naturalisation and citizenship for immigrants in the Council’s 2011 ‘Living in Limbo’ report which called for changes to the naturalisation application process to simplify and speed up the process for those who wanted to obtain Irish citizenship.

This year’s report, published by the Migration Policy Group in Brussels, identified several barriers to Irish citizenship for applicants such as the lack guidelines for applicants and lack of clarity and transparency in light of the Minister for Justice and Equality’s absolute discretion regarding citizenship applications. This lack of transparency is worsened by the lack of a formal appeals system and the lack of reasons given in cases of a refusal. The report also notes that the Irish system is one of the most demanding in terms of documentation requirements and also has higher application costs than most other EU countries. Furthermore, despite a commitment by the Minister for Justice in 2011 to reduce waiting times for applicants to 6 months many applications are still taking over a year to complete.

Chief Executive of the Immigrant Council of Ireland, Denise Charlton, said that Ireland’s low rate of citizenship has economic and social implications for Ireland, noting that immigrants who have been naturalised find it easier to integrate with Irish society and “are more often employed, less often overqualified for their jobs, have better housing conditions and have less difficulty paying household expenses.”

Freya Foster

Brophy Solicitors

Domestic violence and immigration law issues brought before Oireachtas Justice Committee

The Immigrant Council of Ireland, as part of the Domestic Violence Coalition, has called on the Government to introduce new laws formally recognising the issue of domestic violence in Irish immigration law. Approximately 10% of the Immigrant Council’s overall caseload involved domestic violence however the Council noted in its submission to the Oireachtas Justice Committee that many victims may not be coming forward for fear that it could impact on their right to remain in Ireland. This fear, coupled with administrative barriers and lack of access to safe emergency housing, can leave people vulnerable to threats, abuse and violence.

In addition to legislative action, the Council called for short term measures to be taken in the form of a coordinated administrative response by the Irish Naturalisation and Immigration Service, the Department of Social Protection and the Health Service Executive. It also welcomed a policy clarification issued by INIS in 2012 regarding the possibility of applying for an independent residency permit for non-EEA nationals who are experiencing domestic violence.

However the Council noted the shortfalls of this guidance, namely its reliance on discretion and the lack of clarity as to what type of status would be granted or the likely processing time for the application. It also cautioned that the €300 fee required for a Garda National Immigration Bureau certificate of registration that is paid after a successful application, was a serious barrier to applicants since many would previously have been financially dependant on their abuser and would therefore struggle to pay the fee. The Council emphasised the importance of continuing social welfare payments for eligible non-EEA victims of domestic violence regardless of the stage of their immigration application and regardless of their current immigration status.

The Council also suggested that the UK experience of introducing and refining a domestic violence concession could provide useful guidance in both the legislative and administrative context. This includes a wide definition of domestic violence, equal application to male and female partners, married and unmarried couples and to opposite and same sex relationships. Fee exemptions, legal aid and flexibility regarding evidentiary requirements were also suggested. Importantly being undocumented should not prohibit making an application as the time taken to appreciate or be advised that there is a remedy available may mean that leave has expired in many cases.

In their submissions the Council also urged the Irish government to sign and ratify the Council Of Europe 2011 Convention on Combating and Preventing Violence against Women and Domestic Violence which has already been signed by 26 members of the Council of Europe. 

Freya Foster

Brophy Solicitors

Changes to Immigrant Investor Programme introduced

Minister for Justice, Equality and Defence, Mr Alan Shatter TD, recently announced changes to the Department’s Immigrant Investor Programme. The scheme is designed to encourage foreign investment and offers residency rights to individuals from outside the EU who have a high net worth. These residency rights are offered in exchange for certain levels of investment in Irish businesses, in Government Bonds, in property (along with bonds) or by way of endowments. 

Since its launch last year, nine applications under the Immigrant Investor Programme have been approved. However Minister Shatter noted that more could be done to attract foreign investment under this scheme. The changes, which took effect on the 15th of July, include a reduction of 50% in the minimum investment for both Government bonds (decreased to €1 million) and Irish businesses (decreased to €500,000). The changes will add payment of education fees for the children of investors as contributions to the level of investment required under the scheme. These changes mean that persons can now avail of the programmes benefits (residency rights in Ireland) with lower levels of investment.

The scheme will be promoted through Ireland’s embassy network and the State agencies involved in the promotion of trade investment and enterprise. Minister Shatter concluded his announcement of the changes by noting that "Ireland is an excellent place to do business and has many advantages in terms of its quality of life for investors and their families. They are very welcome here and will find good business opportunities….[The Immigrant Investor Programme] is a further indication of the Government’s recognition of the role that talented and successful migrants can make to Ireland’s economic development and the contribution they can make to job creation."

Freya Foster

Brophy Solicitors

RECOGNITION OF STATELESSNESS IN IRELAND

In Ireland, there is no procedure for the determination and recognition of a person’s status as stateless, despite the fact that Ireland is a party to both the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

The UNHCR Irish office has highlighted this failing in the Irish Immigration system, and it is stated as follows on their website

“UNHCR has noted that, in Ireland there is currently no discrete procedure in which a stateless person can have their status considered. The absence of identification impacts on a stateless persons’ ability to get, for instance, travel documents, and to make representations to the Minister to waive the naturalization requirements as specified in Section 16 (g) of the Irish Nationality and Citizenship Act 1956 (as amended).

UNHCR is currently working with the Irish authorities to see how statelessness identification procedures might be introduced in Ireland.”

It is surprising that the Irish State appears to recognize statelessness in one very narrow respect – applications for Naturalization. Section 16 (g) of the Nationality and Citizenship Act 1956 (as amended) provides the Minister for Justice and Equality, the discretion to waive the normal conditions for naturalization for both refugees and Stateless persons. It is strange that stateless persons can apply for such a benefit where they cannot officially apply to the State to have their stateless status recognized. 

It is also surprising that to the Travel Document Section of the INIS website indicates the Minister’s policy in issuing travel documents to stateless persons as follows;

“The State (Irish Naturalisation & Immigration Service) is obliged to issue travel documents to persons granted protection in accordance with:

• The 1951 UN Convention relating to the Status of Refugees (Article 28) and The Refugee Act, 1996 (Article 4)
• The 1954 Convention relating to the Status of Stateless Persons (Article 28)
• The European Communities (Eligibility for Protection) Regulations 2006 (SI 518 of 2006)”

However, it is impossible to obtain such a stateless Travel Document in Ireland, because no person can currently obtain recognition of their stateless status. 

We have recently issued High Court proceedings seeking a declaration that the Minister’s failure to have in place a transparent and effective system by which our client can apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constitutes a breach of the our client’s right to the effective exercise of his legal rights under European Union law, the Constitution and the European Convention on Human Rights Act 2003. 

Until the Minster has set up a fair process for the determination and recognition of stateless persons, we suggest that all stateless persons resident in the State should write to the Minister for Justice, to make the following requests ;

1. Request the Minister to acknowledge your status as a stateless person by way of a Certificate of Statelessness
2. Request that the Minister provide you with a Travel Document pursuant to the 1954 Convention relating to the Status of Stateless Persons
3. Request the Minister to explain why no mechanism has been put in place to acknowledge your status as stateless, despite Ireland being a party to the Conventions on Statelessness 
4. Request the Minister to explain if and when such a mechanism will be put in place.

Brophy Solicitors

UNHCR REPORT ON EU ASYLUM SYSTEMS

The United Nations High Commissioner for Refugees (UNHCR) have recently published a report entitled "Beyond Proof, Credibility Assessment in EU Asylum Systems “ on the role of the credibility assessment in determining refugee status. The report focuses on the use of credibility within the Common European Asylum System (CEAS) and is another step towards the UNHCR’s goal of producing updated guidelines on the assessment of credibility of asylum claims.

The CEAS is designed to ensure that an applicant would, in principle, receive the same decision on his or her asylum application regardless of which EU Member State they made their application in. However because the credibility assessment is so often a key factor in determining refugee status, similar cases in different Member States often have different outcomes because the method of assessing credibility differs. For example certain decision makers in one member state may have more discretion or employ a different approach when assessing an applicant’s credibility. 

The UNHCR noted that there is a clear trend in the EU where negative decisions on asylum applications are made on credibility grounds without applying the relevant Qualification and Asylum Procedures Directive. It also noted that there was no common understanding and approach within the CEAS regarding the assessment of credibility and that there was therefore a pressing need for comprehensive and up-to-date guidance for decision makers on how to correctly assess an applicant’s credibility. 

This report does not constitute this guidance it merely seeks to identify and clarify key concepts surrounding credibility and to inform discussion and debate. However it does provide some guidance for decision makers in the form of checklists and flowcharts designed to illustrate how to take into account the various relevant factors (such as education, fear and the impact of trauma) when making a credibility assessment. These checklists emphasise the various duties and obligations of both decision maker and applicant during the course of the asylum application process. In its conclusions the report calls for a more consistent, transparent and principled approach to credibility assessments, based in law and on good practice. It notes the disparity between policy and practice in credibility assessments in member states and calls for enhanced training on credibility for decision makers in order to combat this and to achieve a consistent approach to credibility assessments throughout the CEAS.

The report is available via the following link: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=519b1fb54&skip=0&query=credibility

Brophy Solicitors

HUMAN TRAFFICKING BILL

Earlier this month the Criminal Law (Human Trafficking) (Amendment) Bill 2013 was passed through both Houses of the Oireachtas. This Bill was designed to comply with EU Directive 2011/36/EU and criminalises trafficking for the purposes of forced begging and criminal activities. Trafficking for sexual exploitation, labour exploitation and the removal of organs has already been criminalised. The Bill also caters for child victims as it increases the maximum age at which video evidence may be admissible in court from 14 to 18. 

In a press release from the Department of Justice, Minister Alan Shatter said that human trafficking is an ‘appalling crime, a serious abuse of human rights and an affront to the dignity of a person.’ 

The Turn off the Red Light Campaign, a coalition of organisations which campaigns for the end of prostitution and trafficking in Ireland notes that 75% of cases involving human trafficking involve sexual exploitation. The campaign notes that while there were 37 investigations into trafficking for sexual exploitation over the past 16 months, this is probably only a fraction of the actual number of victims trafficked for these purposes. They propose that Ireland adopt a model similar to that of Sweden, where it is a criminal offence to buy sex. They believe that this will undermine demand for trafficking and prostitution, which will have a more direct impact on the €180 million per year sex trade industry.

The Immigrant Council of Ireland reports harrowing stories which detail the systemic abuse that is inflicted on victims of trafficking in Ireland. Deception is a common theme in these reports – many women and girls are encouraged to travel to Ireland to seek opportunities and are then forced into the sex trade upon arrival. The Council, which is a founding member of the Turn off the Red Light Campaign, calls for strong legal steps to be taken to ensure that Ireland is not a ‘soft target’ for traffickers. Ireland has previously been criticised by OSCE and the US Department of State for falling short in this area.

Although this Bill was necessary in order to bring Irish law in line with EU obligations, it may have a muted impact on the elimination of trafficking in Ireland, considering that the majority of reported cases don’t deal with forced begging and criminal activities. The Bill is welcome, but will probably not have the strong preventative effect on trafficking that anti-trafficking organisations believe is necessary. 

Katie O’Leary

Brophy Solicitors

Unlawful killing of deportee should be a warning to all States

Last week, an inquest jury in the UK returned a verdict of unlawful killing of Jimmy Mubenga, an Angolan national who died on board a plane at Heathrow airport in October 2010 while being deported from the UK to Angola. He died of positional asphyxia at the hands of G4S security guards, independently contracted by the UK Home Office to effect deportations. The inquest jury held that the G4S officers used unreasonable force when they held Mr Mubenga with his head down, restricting his breathing. Passengers heard Mr Mubenga calling for help and saying that he could not breathe. Passengers told the inquest that Mr Mubenga was crying out: "They're going to kill me." Mr Mubenga was pronounced dead on the plane a short time later. He had been in the UK for sixteen years and leaves a wife and five children.

This is a chilling and disturbing case on a number of levels. The high profile case shows up the dark side of deportation. It is a part of the immigration process we hear and read very little about. By its nature, it is difficult to get information about how deportation is effected and how deportees fare. I recall an Iranian client called me from Iran to tell me how he had been restrained, punched and beaten in the course of his deportation from the UK. Yet there was very little we could do to help him as he was outside of the UK and had no evidence to document what had happened to him.

In the UK, independent contractors such as G4S are brought in to effect deportations. Deportation is the most costly part of the immigration process for any State and sub-contracting its implementation is one way to reduce costs.

But questions are now being asked as to whether such sub-contracting might come at a higher cost. The G4S guards involved in the tragic deportation effort of Mr Mubenga failed to adhere to their own guidelines. Furthermore, the inquest found that the guards would have known that their actions were causing Mr Mubenga harm, even serious harm. During the hearing more sinister details emerged: two of the guards had a string of racist "jokes" on their phone containing what the coroner Karon Monaghan QC described as "very racially offensive material". All this reinforces the need for any necessary deportations to be effected in an appropriate, safe and transparent manner. The tragic case of Mr Mubenga shows that sub-contracting this difficult process out to a third party is not a safe option and can have devastating consequences.

A full briefing on the Mubenga case can be read here:
http://www.inquest.org.uk/pdf/briefings/INQUEST_briefing_Jimmy_Mubenga_updated_may_2013.pdf

 

Rebecca Keatinge
Brophy Solicitors

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.