ROMANIAN AND BULGARIAN CITIZENS AND RECKONABLE RESIDENCE

Recently we have been working on a case involving the disputed reckonable residence of a Romanian national for the purposes of obtaining an Irish passport for the applicant’s child.

Following Romania’s accession into the EU in 2007 our client was eligible to reside in the State. Having resided in the State legally between 2007 and 2013 the applicant should have been eligible to obtain an Irish passport for his daughter. However, this was denied by the Passport Office which claimed that the client was not lawfully resident due to having worked without a work permit for a number of years. While it is recognised that the father may have breached employment law, his residence was in fact valid under EU law and thus Irish law. The High Court proceedings have been issued on the contention that the Passport Office was erroneous in its decision as our client did not fit into any of the specified ‘reckonability’ restrictions in S6B(4) of the Irish Nationality and Citizenship Act 1956.

We are pleased that the High Court has granted to leave to bring a judicial review against this decision. We will provide further update in due course.

 

Karen Berkeley

Brophy Solicitors

FAMILY REUNIFICATION OF DEPENDENT PARENTS

Recently, we have been granted leave on a number of High Court Judicial Review proceedings against the Minister for Justice and Equality for failure to properly assess applications for family reunification for dependent parents. These cases have involved applicants who are Irish citizens or possess permanent residence in Ireland, and who have Irish citizen children, and have demonstrated the necessary financial means to support their parents so as not to place financial burden on the state. They have also demonstrated that their parents are in fact dependent on them financially, socially and emotionally, many of them having severe medical conditions and health problems, with no viable options for care and support in their home countries. In one particular case, medical evidence was provided confirming that one of the applicant’s parents could not to undertake long haul flights and this information was not considered.

The main issue that has arisen is the Ministers reliance on the INIS’s Policy Document on Non-EEA Family reunification. This document places rigorous hurdles on applicants stating that a “Highly restrictive approach should be taken”, citing the states inability to take on the potential financial liability of elderly dependent parents.

The financial thresholds for a sponsor of one dependent parent is a requirement to evidence earnings of €60,000 gross for the three years preceding the application, and 75,000 gross for inviting two parents.

Whilst our clients have good earnings, and demonstrated a strong ability to financially support their parents, they were unable to meet the high level of finances required.

No consideration was carried out that our clients sought only to acquire a Stamp 0 permission for their dependant parents - it is an express condition of residence that the applicant is not entitled to claim any state benefit.

Disregard was paid to the applicants rights as a family afforded by Article 41 of the constitution, section3 of the European Convention on Human Rights, in particular Article 8, and European Union law. In refusing the applications, the minister failed to asses these protections, stating that the applicants’ rights under Article 8 of the European Convention on Human Rights would be fully considered if, and when, the deportation process is initiated against the second and third named applicants pursuant to section 3 of the Immigration Act 1999. We submit that this failure to fully weigh and assess the applicants rights render these decisions unlawful.

We would also highlight that the INIS policy document is not legally binding, and unfettered reliance may ultimately be unlawful due to its failure to recognise and adequately vindicate the safeguards and protections afforded to permanent residents rights of the family.

 

Karen Berkeley

Brophy Solicitors

LONG TERM RESIDENCY FOR RETIRED PERSONS OF INDEPENDENT MEANS

We are currently advising several clients on applications for permission to reside in the State as retired persons of independent means. This specific situation is relevant to a non-EEA person, who does not seek recourse to employment, self-employment or public funds, but merely wishes to reside in the state, supporting themselves through independent means, for example income generated through rented properties, investments etc.

We recently contacted the Irish Naturalisation and Immigration Service (INIS) to establish if a specific application procedure applies here and what criteria must be satisfied. We referred to the INIS website that sets out the various forms of stamps and includes a retired person of independent means as covered by Stamp 3 permission.

We received a response from INIS this week that states that the appropriate stamp is in fact a Stamp 0 and that their website will shortly be updated to reflect the position. INIS stated that they do not have a distinct category of retirees for immigration purposes. INIS indicated that permission would only be granted on the express understanding that the applicant is not entitled to any State benefit and on the basis of full documentary evidence to confirm they will not become a financial burden on the State. The primary requirements were stated to be: financial self-sufficiency, comprehensive medical insurance, and good character. They clarified that there is no application form. They also clarified that it is open to non visa nationals to make an application from outside the State.

It is clear therefore that in order to attain stamp 0 in this capacity, an applicant must provide extensive documentary evidence, primarily substantiating their financial self-sufficiency, including details of all income and expenditure. It is necessary to have comprehensive medical insure, that INIS stated must be equivalent to Plan D VHI, HealthPlus Premium (http://www.vhi.ie/pdf/products/TOBHPpremium.pdf). The applicant must also be of good character and be able to provide police references from every country they have resided in during the twelve months prior to application.

If the application is successful residence will be granted for a maximum of twelve months, after which a renewal application must be submitted.

INIS stated in their response that this is to be regarded as a temporary status only. It is important to note however that Stamp 0 is not amongst the express exclusions for eligibility for citizenship by naturalisation and therefore any period spent on Stamp 0 should constitute reckonable residency. See our previous post that specifically addresses this point.

Brophy Solicitors

REFUGEE CRISIS

Last month World Refugee Day reminded us of the plight of millions of refugees worldwide, but this thought should be kept in mind for as long as war and conflict continue. The world is currently experiencing a refugee crisis, the scale of which was last seen during World War 2. This is largely caused by the Syrian war, which has claimed 80,000 lives, forced 2.5 million people to leave the country and internally displaced a further 6.5 million.

How has Ireland typically reacted to refugee crises? In World War 2, when around 50 million people were displaced by conflict and millions of people persecuted, Ireland hosted 150 Jewish refugees. After Augusto Pinochet’s coup in Chile in 1973, which resulted in thousands of deaths and injuries, Ireland was one of the last EU countries to take Chilean refugees and in the end only took 12 families. The year 1956 stands out, as 541 Hungarian refugees were welcomed in Ireland.

Now, during the greatest refugee crisis since the Second World War, when the UN estimated that 51.2 million people were forcibly displaced people worldwide at the end of 2013, Ireland is taking 90 Syrian refugees.

This number is extremely low. Austria, a country with a GDP per capita not far off Ireland’s, will host 500 Syrians, as will the UK and France. Germany, on the other hand, has committed to providing 30,000 places for Syrians.

Though the efforts of Germany and the rest of the EU seem impressive compared to Ireland, the EU is receiving relatively few refugees when Syria’s neighbouring countries are considered. While 60,000 Syrians have claimed asylum in the EU since the start of the war, more than 2 million have fled to the Syrians neighbouring countries, such as Lebanon, Jordan, Turkey and Iraq. This means that the EU has only received 4% of Syria’s refugees.

Everyday, an estimated 2,000 Syrian refugees enter Jordan. Lebanon, a country the size of Munster, is accommodating 1 million Syrians that have sought refuge there. These countries cannot cope with this huge influx of people. In Lebanon, the population explosion has led to price increases, housing shortages and many social problems.

Moreover, Jordan’s position highlights that Ireland’s low number cannot be justified on cost grounds. Developing countries, like Jordan, take in the vast majority of refugees. Indeed, 80% of the world’s refugees are hosted in developing countries.

All EU states should aim to help ease the pressure off Jordan and Lebanon and endeavour to make a real effort to help the millions of Syrians that have had to flee their home. Ireland, in particular, should commit to host more than just 90 Syrian refugees.

In 2012, the former Justice Minister Alan Shatter admitted with regret that Ireland’s “morally bankrupt” regime of the 1930s kept the doors to this state “firmly closed to German Jewish families trying to flee from persecution and death.” It is not enough to realise our mistakes 60 years too late, now is the time to take responsibility and play our part.

Ciara Dowd

Brophy Solicitors

GUIDANCE ON THE TREATMENT AND ASSESSMENT OF BEST INTERESTS OF MIGRANT CHILDREN

UK Court of Appeal decision: EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874,

Summary of facts

The Appellants consisted of a mother, a father and three children, all Philippine nationals. The mother was lawfully resident in the UK on a work permit from June 2007. The rest of her family joined her in April 2008. In February 2011, the Appellants applied for indefinite leave to remain. This application was incorrectly rejected on the basis that it was made on the wrong form. This meant that when subsequent applications were made, they were dismissed on the basis that there is no right of appeal. When the matter was finally considered, the judge rejected the claim because EV was not being paid a sufficient amount for her to qualify. Her employer wrongfully failed to employ her at the relevant rate. The family were denied leave to remain and were expelled.


Summary of guidance

Christopher Clarke LJ held that when deciding on the best interests of a child, the factors that are to be considered are;

(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to live in that country;
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (at paragraph 35.)

He continued: “The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.” (at paragraph 36)


The significance of this case is that the Court of Appeal has given the most coherent guidance to date on how to interpret and apply the best interest of children in immigration cases. This judgment will be useful in giving guidance on the issues that should be addressed by legal practitioners and whether an immigration officer has made a proper assessment of a child’s best interest in their determination. This judgment is obviously not binding in Ireland but offers assistance in an area where there is little Irish case law, policy or guidelines.

Ciara Dowd

Brophy Solicitors

DIRECT PROVISION – URGENT CHANGE NEEDED

There is an urgent need for change in Ireland’s asylum system. As it currently stands, asylum seekers must wait in direct provision centres while their application for refugee status or subsidiary protection status is pending. Direct Provision was originally introduced as an emergency measure in 1999 and was only supposed to last for 6 months. Indeed, the reaction to this change from asylum seekers is observable - in 2000, there were 10,938 new applications, while in 2013, there were 946.

Currently, there are around 6,000 people living in Direct Provision accommodation centres. Because of the poorly structured application procedures, 59% of current applicants have been in this system for over three years and some have been there for over 6 years. The hardship of long periods of time living in Direct Provision is aggravated by the general poor standards of accommodation and lifestyle associated with these centres. The recent Economic and Social Research Institute report on Direct Provision notes a lack of privacy, overcrowding, a lack of facilities for children, and a lack of autonomy. The lack of autonomy with specific regard to food and the lack of exercise facilities mean that physical health problems are widespread. Mental health problems such as anxiety and depression are also common.

Internationally condemnation 

In fact, the Direct Provision procedure has received international condemnation. The Balseskin Reception Centre in Dublin has been condemned as inadequate for its conditions by the Council of Europe in a report on trafficking. Women and children who have been sexually exploited and abused are held in mixed gender centre, which may aggravate their trauma. 

The matter was raised in the High Court of Northern Ireland in Belfast, where the concern applicants were asylum seekers who applied for asylum in the Republic of Ireland but subsequently travelled to Northern Ireland. Mr Justice Stephens noted the poor treatment asylum seekers in Ireland experience, in particular, the absence of permission to work, the low allowance and widespread health problems. He found that the conditions of the centres were contrary to the best interest of the child [In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88(14 August 2013)].

Can change happen?

It seems as the government are satisfied with the poor standards associated with Direct Provision centres, as it operates as a deterrent to asylum seekers who may wish to claim refuge in Ireland. Fine Gael TD Charlie Flanagan said during Prime Time in January that it should be ensured “that Ireland is not an attractive place for applicants”, so the State would not become overburdened. Elsewhere, the Former Minister for Justice Alan Shatter has also defended direct provision on cost grounds. 

Thus, it is clear that if an alternative system were going to be considered by the government, it would have to be equally economical or even cheaper. While the €19.10 per adult and €9.60 per child is easy to calculate, it is harder to put a monetary value on the mental health issues that asylum seekers experience resulting from the lack of autonomy in the centres, or perhaps the insensitivity to victims of gendered crimes. This sanctioned ill-treatment of those who have not committed any crimes and who have already suffered enormously can no longer continue and be justified on cost effectiveness grounds. The government needs to be conscious of what legacy it wishes to leave behind on its treatment of asylum seekers.

Ciara Dowd
Brophy Solicitors

SUMMARY OF KAREN BERKELEY’S SPEECH FOR THE CONFERENCE 'BEYOND THE SINGLE PROCEDURE: REFORMING IRELAND'S PROTECTION SYSTEM' HELD AT UNIVERSITY COLLEGE DUBLIN’S SUTHERLAND SCHOOL OF LAW TO MARK WORLD REFUGEE DAY 2014.

Mr Uustalu was granted the first declaration of statelessness in Ireland by the Minister for Justice in March 2014. Mr Uustalu is from a town located in Estonia, which, at the time of his birth, was in the territory of the USSR. In 1991, Estonia became an independent state and Mr Uustalu was issued an “Alien’s Passport”, identifying his citizenship as undefined. He was entitled to apply for Estonian citizenship, however, this entailed the applicant to pass an Estonian language exam, which Mr Uustalu and his parents, as Russian speakers, would have been unable to pass. 

Mr Uustalu first came to Ireland in 2002 and unable to acquire lawful residence status as a stateless person because of the lack of such a procedure. Unable to leave the state since then, because his “alien’s passport” expired, Mr Uustalu made an application for a stateless travel document last year. This failed because he could not provide a declaration from the Minister confirming his stateless status. Subsequently, there was an application for this declaration made under the 1954 Convention, but this application was unanswered. This led to high court proceedings seeking a declaration that the failure by the State to have in place a procedure by which Mr Uustalu could apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constituted a breach of his rights and the State’s obligations under the 1954 Convention relating to the Status of Stateless Persons. A few days before the hearing, the proceedings were settled and Mr Uustalu was issued with the first declaration of Statelessness in Ireland.

The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons. This is the principle international instrument to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms. Article 1 of this convention defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition describes a particular type of statelessness, which is characterized by the formal lack of nationality, this is known as “de jure statelessness”. There are also persons who are “de facto stateless”, that is, people who formally hold a nationality but experience the associated problems with statelessness because that nationality is ineffective. The Convention also distinguishes between non-refugee stateless persons and a stateless refugee. 

A declaration of statelessness is important because this recognition by a State provides a person with a legal status and basic entitlements, including a right to work and travel, among others. If a person is stateless without formal recognition, they will not have any legal protection or automatic rights to healthcare, education and employment, which puts them at risk of exploitation. 

 

The assessment of stateless status is complicated because of an overlap between statelessness and refugee status, and also the sometimes unclear distinction between de jour statelessness and de facto statelessness. The Convention does not provide for specific procedures for the assessment of statelessness.

For a fair and efficient status determination procedure, there must be a clear and transparent legal framework, access to legal advice and information and an effective appeal system. Decisions must be made in a timely manner and there should be a provision of accommodation and welfare through the determination process. A stateless person who also has grounds for asylum is not eligible for protection under the 1954 Convention , thus, the application for asylum must be considered first.

Ireland has failed to meets its obligations under the 1954 Convention, as there exists no formal procedure for determination in stateless. The few applications that have been made for recognition of stateless status have been made as submissions included in an asylum application, submissions included in an application for humanitarian leave to remain and sometimes as submissions at the deportation stage when it emerges that an applicant has nowhere to be deported to. Though some persons have has their stateless status recognized by ORAC and the Refugee Appeal Tribunal, the Minister has not afforded them the declaration to recognize their stateless status. Therefore, unless the stateless person can fit their case successfully in the asylum application process, or acquire legal status through other means, they are left in a legal limbo. 

The Irish State has, however, has implemented some of the derivative rights for stateless persons found in the Convention, such as application procedures for stateless travel documents and procedures for naturalisation of stateless persons. Yet, these are meaningless unless the applicant can be formally recognised by the State as stateless.

With the proposed introduction of the single procedure to the asylum application procedure, it is necessary to include stateless persons in this discussion. It is crucial that a durable solution for stateless people is put in place now. If there are to be further long delays in the creation of the single protection procedure, than a temporary procedure must be implemented for Stateless persons imminently. It is now imperative to address the failings of the Irish State to date to fulfill the obligations under international law by setting up a legal framework in which stateless persons can access a declaration of their status and the rights which accrue from this. 

I wish Nasc, the Immigrant Council of Ireland and the UNHCR the best of luck in their current campaign to ensure that stateless persons do not continue to be ignored in this way.

Karen Berkeley
Brophy Solicitors
 

SPOTLIGHT ON IRELAND’S FLAWED ASYLUM AND PROTECTION PROCEDURES AT UCD CONFERENCE FOR WORLD REFUGEE DAY

On Friday the 20th June last, Karen Berkeley from our offices presented a speech on statelessness for the conference 'Beyond the Single Procedure: Reforming Ireland's Protection System' held at University College Dublin’s Sutherland School of Law to mark World Refugee Day. Karen’s topic was Statelessness: Ireland’s obligations under the 1954 Convention relating to the status of Stateless persons.

Karen discussed the recent successful case of her client Mr Roman Uustalu who was granted the first declaration of stateless status in Ireland. Karen highlighted the urgent need for a comprehensive legal framework to be implemented to fulfil Ireland’s obligations under the 1954 Convention. To see a summary of Karen’s speech, see the attached link: http://brophysolicitorsimmigration.blogspot.ie/2014/06/summary-of-karen-berkeleys-speech-for.html.

Other important issues discussed were the asylum appeals backlog and the proposed single procedure reform to the asylum system.

It was noted that the delays in the high court for hearing appeals by asylum seekers whose refugee status applications have been rejected is one of the main reasons that people spend so long in direct provision centres. There are over 1,000 asylum cases waiting to be heard in the High Court. Barry Magee, the chairman of the Refugee Appeals Tribunal, said that “It would take four years and seven months to get through the current cases on the list, without any new ones being added.”

He added that he would be willing to seek alternatives mechanisms to determine those cases. Sophie Magennis, the head of office with UNHCR in Ireland, delivered the keynote speech and offered alternative dispute resolution as a mechanism which could be considered as a means to reduce the backlog in the High Court.

Patricia Brazil, a barrister and lecturer in law at Trinity College Dublin, spoke about the history of the protection system and judicial review. She noted that it was surprising that Ireland’s figures for judicial review of asylum cases were not higher, given the fragmentation of the asylum system. 

Ms Magennis further noted that UNHCR welcome the proposed single procedure. She said that additional measures could also be introduced, such as the easing of restrictions of the direct provision system and greater access to integration supports for applicants.

 

Karen Berkeley
Brophy Solicitors

VISA APPLICATIONS FOR EU CITIZEN AND THEIR FAMILY MEMBERS EXPLAINED

The EU Directive governing the family reunification for EU citizens exercising their Free Movement Rights is Directive 2004/38/EC. This is separate from national law. On INIS, www.inis.gov.ie, there is a choice to make an application of being a family member of an EU citizen or otherwise under national law. EU citizens and their family members have a right under residence, under Article 6 of the Directive, for up to three months in the State without any conditions.

The form of visa to be issued is a single entry C visa. To be granted a visa under the Directive, the applicant must prove that they are either a i) a qualifying family member or ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

Qualifying Family Members include:

i) the spouse of the EU citizen

ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

Permitted Family Members include:
i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained. 

ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

The applicant must prove:

i) that there is an EU citizen from whom they can derive rights from under the Directive;

ii) the existence of the required relationship as either a qualifying or permitted family member;

iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

The proofs that are required are:

i) proof of identity (for example, valid passports for the applicant and the EU citizen);

 

ii) proof of the required relationship (e.g. a birth certificate or a marriage certificate);

iii) for a permitted family member, proof of dependency or membership of the household;

iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland at the time of arrival of the applicant family member (proof of travel to Ireland, for example).

The INIS website lists types of supporting documentary evidence. There is no need for additional proofs, such as evidence of employment or letter of invitation. 

Refusals can be made on the following grounds:

i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Member states are not obliged to recognise a polygamous marriage where this is not allowed in their national law, as is the case for Ireland, thus this time of marriage cannot be relied upon as proof of the family relationship. Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship. However, marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into. 

If refused, the applicant may, in addition to, or as an alternative to, exercising their right of appeal, submit a new visa application for consideration. Any such application will be considered separately from their application and will not affect their right to appeal.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications. 

If the visa is approved and the applicant wishes to reside in Ireland for more than three months, then they should make an application (when in the State) for a residence card (GNIB card) of a family member of an EU citizen to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

Ciara Dowd 

Brophy Solicitors
 

THE NAWAZ CASE AND THE NEED FOR THE "SINGLE PROCEDURE" IN PROTECTION APPLICATIONS

In the recent case of Nawaz, the Court of Justice of the European Union criticised the Irish asylum application procedure for lack of basic fairness and stated that it should be possible to submit the applications for refugee status and subsidiary protection status at the same time, in other words, that there should be a single procedure for asylum applications.

There are many problems with the current procedure in Ireland, which is that applicants seeking subsidiary protection status must apply first for, and be refused, refugee status. Ireland is the only country in the EU which this two stage application. Indeed, Ireland has among the lowest grant rates in the EU for subsidiary protection status, granting only 30 last year. Subsidiary protection applies to third country nationals who would be at risk of being killed, tortured or at risk of human rights abuses if they were deported, but who do not fit the narrower criteria of refugee status.

Applications for refugee status are processed by the Office of the Refugee Applications Commissioner (ORAC). If ORAC does not recommend granting refugee status, the applicant may appeal to the Refugee Appeals Tribunal, or may wait for a deportation order. It is only at the point of the deportation order that an application for subsidiary protection can be made.

The separation of these applications over different stages is a problem mainly because it causes asylum seekers, who may be clearly applicable to subsidiary protection, to go through the process of applying to refugee status. This means that they may spend unnecessarily long periods of time living in Direct Provision centres, which have been internationally condemned for their poor conditions. Asylum seekers spend 45 months, on average, in Direct Provision centres, while 845 people have spent more than 6 years in the system. This has significant personal consequences on the asylum seeker who have suffered severe traumas in their country of origin and also places a burden on the state. In 2012, the cost of the Direct Provision centres was €62.3 million.

The single procedure is being advocated as the main solution to replace the problematic system currently in Ireland. The single procedure would end the two stage process of applying for subsidiary protection. A single procedure for asylum applications would lead to faster processing, reducing the length of time individuals and families spend in Direct Provision centres and provide comprehensive access to all forms of international protection. It is possible that the single procedure would make decision-making more complicated, in that, applications for refugee status and subsidiary protection status would have to be considered simultaneously. Complications arising from this may include errors in decision making which may in turn lead to deportation of people who are genuinely at risk. Thus, it is crucial that the new single procedure system be well resourced and managed. 

The single procedure was first introduced in Ireland in the Immigration Residence and Protection Bill 2008. However, this Bill has been repeatedly delayed. Therefore, especially with the recent ruling of Nawaz, it is necessary that the government legislate immediately for a single procedure for asylum applicants, possibly separately from the other issues contained in the Bill for the sake of expediency. 

Ciara Dowd

Brophy Solicitors
 

WORLD REFUGEE DAY

World Refugee Day is taking place on the 20th of June. This day aims to draw attention to hardship faced by the millions of refugees who are forced to leave their homes as a result of conflict and persecution. World Refugee Day also aims to commemorate the cultural contribution that refugees make to societies around the world. There are events held worldwide to celebrate the courage, resilience and strength of refugees and the solidarity of the countries that assist in providing asylum. There are many events taking place in Ireland to commemorate this day.

 

Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law are hosting a conference to mark World Refugee Day from 10am to 3pm. The conference is titled Beyond the Single Procedure: Reforming Ireland’s Protection System, and will include speakers from the United Nations High Commissioner for Refugees (UNHCR), various refugee support agencies in Ireland, legal practitioners working in the area. Karen Berkley from our office will be speaking on topic of Statelessness. The conference will serve as a forum to discuss the refugee protection in Ireland and the impact of the pending reforms. To attend this event, please contact Bethany Wynee-Morgan on Bethany@nascireland.org. 

 

The Irish Refugee Council are holding an event at Studio Six, Temple Bar Gallery, Dublin 2 at 6pm with guest speak Geoffrey Shannon, Special Rapporteur on Child Protection. The success of the Irish Refugee Council’s Advocacy programme will be discussed in light of the launch of its evaluation and resource guide for service providers working with separated children. To attend this event, please RSVP to caroline@irishrefugeecouncil.ie. 

 

The UNHCR has organised a book-reading campaign with libraries and bookshops across Ireland, beginning the 16th of June. This campaign will draw attention to books that are based on experiences of refugees, such as The Kite Runner, which will in turn educate both children and adults on the devastating impact of war on families.

 

 

UNHCR and Sport Against Racism Ireland are holding the event “The Fair Play Cup, Celebrating World Refugee Week” at the Law Society Gardens, Blackhall Place, Dublin 7. This event will draw football players from refugee and community groups and aims to highlight the positive experiences of refugees in Ireland and draw attention to the plight of refugees worldwide.

 

UPDATE ON THE IMMIGRANT INVESTOR PROGRAMME

We have been dealing with a number of queries in relation to the Immigrant Investor Programme. The programme is open to non-EEA nationals and their families who commit to a specific investment in Ireland. Successful applicants will be granted rights of residence in Ireland with an initial period of two years and then a further three years after which they may be eligible to apply for citizenship.

Two specific queries have come up several times when we have been approached by potential applicant investors.

The first question relates to whether or not an investor is required to be resident in Ireland should their application be successful. It is clear from the Departmental guidelines that there is no minimal residence requirement other than a stipulation that the person concerned must visit Ireland at least once every 12 months.

A second query that we have been dealing with is in relation to the different types of investments open to potential applicant investors. The previous guidelines indicated that applicants could apply to an “approved investment fund”. The only guidance provided by the Department on this type of investment was that the fund invested into would have to be regulated for the purposes of doing business in Ireland and the investment strategy of the fund must be compatible with the aim to the scheme.

We have written to the Department on several occasions looking for a further clarification on what types of funds would be acceptable as approved funds. We note that the guidelines on the INIS website have now been updated to deal with this issue. It is stated that the approved investment fund is not available at this point and further details will follow. We refer you to the updated guidelines that are available here.

While the approved investment fund is no longer available, it should be borne in mind that there are a number of other options available to possible applicants including an investment into Irish Enterprise, an investment into an Irish Real Estate Trust and a mixed investment into residential and commercial property. There is also scope to make a one off philanthropic endowment and also provision to invest in the Immigrant Investor Bond.  

It is clear from recent changes to the Entrepreneurship Programme and the Immigrant Investor Programme that these schemes are being honed by the Department and that the guidelines are being frequently updated and amended. Anyone considering making an application should be sure to check the up to date position to check their eligibility and the current requirements.

Rebecca Keatinge

Brophy Solicitors

EU TREATY RIGHTS – “CONTINUOUS PERIODS OF RESIDENCE” FOR PERMANENT RESIDENCE APPLICATIONS

The opinion of Advocate General Bot was delivered on the 14th May 2014 in response to the Irish High Court’s request to the Court of Justice for a Preliminary ruling in the case of Ogieriakhi v Minister for Justice and Equality, Ireland, (Case C‑244/13) available here. 

The Irish High Court requested the Court of Justice, to clarify the notion of ‘continuous legal residence with the Union citizen’ for the purposes of Article 16(2) of Directive 2004/38/EC and, more specifically, to clarify the words ‘with the Union citizen’.

The case concerned the application of Mr Ogieriakhi, a Nigerian national, for a permanent residence card based on his marriage to Ms Georges, a French national. The couple married in May 1999, and cohabited until August 2001 when their relationship ended. During the period from October 1999 to October 2004, Ms Georges was either working or claiming social security payments. They were divorced in January 2009.

Mr Ogieriakhi was refused his application for a permanent residence card and his subsequent case in the High Court was dismissed on the grounds that the 2006 Regulations did not apply to residency which pre-dated their coming into force in January 2007. Following an appeal to the Supreme Court, Mr Ogieriakhi was granted a right of residence by the Minister for Justice in November 2011, on the basis that he satisfied all the relevant conditions specified by the 2006 Regulations. Mr Ogieriakhi then commenced the main proceedings to the Court of Justice in which he is sought damages against Ireland for breach of EU law. In particular, he had lost his job because of the Minister’s refusal to grant the residence card. 

In summary, Advocate General Bott found that a third-country national spouse of a Union citizen who has exercised a right of free movement may claim a right of permanent residence where the couple lived under the same roof for only two years and for the remaining three years they agreed to live apart with different partners.

Also, for the purposes of a permanent residence card application pursuant to Article 16(2) of Directive 2004/38/EC, a third-country national spouse of a Union citizen may rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

We now await to see if the Court of Justice will follow this opinion of Advocate General Bot.

Karen Berkeley 

Brophy Solicitors

WORK PERMIT UPDATE: REINTRODUCTION OF THE LABOUR MARKET NEEDS TEST

We recently posted an article in relation to the publication of the Employment Permits (Amendment Bill 2014). This legislation proposes significant changes to the existing work permit regime and the main changes are set out in our previous post. 

We have further reviewed the proposed changes and note that the Bill is proposing to reintroduce the Labour Market Needs Test to all employment permit applications and this likely to have a significant impact.

The current position is that when an employee makes an application for a work permit, there is no requirement to satisfy the Labour Market Needs Test (LMNT). In circumstances where the employer makes the application however, the test must be satisfied. The test requires an employer to advertise any vacancy with the Department of Social Protection Employment Services/EURES Employment Network for at least two weeks as well as in a national newspaper for at least three days and also in either a local newspaper or jobs website for three days. Applications cannot be submitted until the Labour Market Needs Test has been completed. Full details of the test can be found here : 

The reintroduction of the Labour Market Needs Test is likely to make the work permit application process more arduous and less attractive to employers, to the disadvantage of potential applicants who may have valuable skills and experience. Our own experience is that many employers simply decline to interview applicants on the basis that they do not hold a stamp 4 and do not take into account the fact that a prospective employee may be eligible for a work permit should the job be offered to them. Employers are also often not aware that there would be no significant delay should the applicant to have to obtain a work permit as applications are processed relatively quickly. The reintroduction of the LMNT to all work permit applications, whether made by the employee or the employer, may present a further disincentive to employers to take on applicants who require a work permit.

We will provide a further update on other relevant aspects of the Bill. It should be noted that the Bill is yet to be enacted and is not currently law. We will confirm on our blog when the provisions are enacted.

Brophy Solicitors

FURTHER UPDATES IN RESPECT OF SUBSIDIARY PROTECTION

On the 8th May 2014, the European Court of Justice delivered the much awaited decision of Case C-C604/12; HN v Minister for Justice and Law Reform.

The Court has held that Directive 2004/38, the principle of effectiveness and the right to good administration do not preclude a national procedural rule, such as that in place in Ireland, under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that firstly it is possible to submit the application for refugee status and the application for subsidiary protection at the same time and secondly that the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court. 

HN concerned the Minister’s refusal to consider Mr. N’s application for subsidiary protection status on the basis that he had not previously submitted an application for refugee status. For further details, please refer to our blog post dated 7th December 2012: http://brophysolicitorsimmigration.blogspot.ie/2012/12/should-state-consider-subsidiary.html

The decision again thrusts into the spotlight the abundance of problems in relation to subsidiary protection in Ireland, which have lead to unacceptable delays in the assessment of individual’s right to subsidiary protection. It is noted that changes have been instigated following the decision of MM v Minister for Justice, Equality and Law Reform, through the implementation of the Statutory instrument 426 of 2013 (http://brophysolicitorsimmigration.blogspot.ie/2013/11/new-subsidiary-protection-statutory.html) which has transferred responsibility for the processing of the applications to ORAC. This has included individual’s undergoing a second interview, in an attempt to address credibility concerns, and many of our clients have subsequently received positive decisions in respect of their applications. 

Despite this progress, it is still necessary for applicants in Ireland to conclude their entire refugee application and appeal prior to being permitted to lodge an application for subsidiary protection. In light of the Court of Justice’s judgment, it is urged that the new system be amended at this early stage to accommodate the making of subsidiary and asylum applications simultaneously. Such amendments will further serve to address concerns in respect of fair procedure and good administration, credibility, costs and moreover will bring the Irish system in line with that of our European counterparts. 

Naomi Pollock

Brophy Solicitors

IMPORTANT CHANGES TO THE START UP ENTREPRENEUR PROGRAMME

The Minister for Justice, Equality & Defence recently announced significant changes to the Start Up Entrepreneur Programme (STEP) that is operated by the Department of Justice. 

The most significant changes to the scheme include a reduction in the minimum investment required from €75,000 to €50,000. Where more than one principal is involved in establishing the business, the minimal investment for second and subsequent entrepreneurs will be €30,000 per principal. A further change is that there will now be provision of a new 12 month immigration permission available for foreign national entrepreneurs attending incubators or innovation boot camps in Ireland. The purpose of the 12 months permission period is to allow entrepreneurs time to prepare their STEP application and to ensure there is a clear route for migrant entrepreneurs to move from the start up to realisation phase of their projects. It is noteworthy that the 12 month period will also be made available to non-EEA students, who graduate with advanced science, technology, engineering and mathematics degrees in Ireland and who intend to work on preparing an application for STEP.

It is clear that these changes make the programme more accessible to foreign national entrepreneurs. The basic requirements will remain the same and is open only to high potential start ups that are introducing a new or innovative product or service to international markets. The start up must show that it has the capacity to create 10 jobs in Ireland and realise €1 million in sales within three to four years of start up. It is a further condition that the start up be headed by an experienced management team, that it be headquartered and controlled in Ireland and that the venture is less than six years old. 

It is interesting to note from the Minister’s recent announcements that there have been 35 applications since the scheme came into operation in April 2012, with 26 of these applications approved and 10 refused, two applications withdrawn and three pending.

These amendments to this administrative scheme are essentially designed to make it more accessible and attractive, and to provide a clear entry route to the scheme. It certainly makes it a more realistic prospect for perspective entrepreneurs and we expect that the government is hoping that there will be an increase in applications over coming months. 

It should be noted that the Minister also announced that unsuccessful applications for the STEP will be referred to the Business Permission Scheme that is currently operated by the Irish Naturalisation & Immigration Service. Significantly, the Minister has stated that terms of the business permission scheme are currently being reviewed to better facilitate entrepreneurship at the more traditional end of the scale.

Rebecca Keatinge

Brophy Solicitors

APPLICATIONS FOR VISAS AND RESIDENCE PERMISSION FOR DEPENDANT NON NATIONAL PARENTS

We are currently working on many applications on behalf of our clients to be joined in the State by their elderly dependant non EEA parent/s. The cases involve general Long Stay Visa applications, and sometimes Change of Status applications while the parent is already in the State.

This is an area now governed by the Minister’s “Policy Document on NON EEA Family Reunification” published in December 2013. The guidelines focus on the financial responsibility for the subject of the application. The matter of whether the subject is dependant or not is left to the sponsoring family member to prove. No definition of dependency is provided. The guidelines indicate that the onus is on the sponsoring family member to show that there is no viable alternative option other than the dependant parent residing in Ireland. The specific financial thresholds referred to in the guidelines include evidencing that the sponsoring family member is earning a minimum of €60,000/ €75,000 (net) for the three years preceding the application (depending on whether one or two parents are the subjects of the application). 

The high financial thresholds will most likely act as a barrier to many applications such as this, if applied very stringently. However, we highlight that the policy guidelines are subject to the parameters of the law. In general, the law requires that each application is assessed on it’s individual merits, and a fair and reasonable outcome is reached, appropriate and proportionate to the circumstances at hand. 

We have limited specific law in this area, other than the significant judgement in the case of Mr Justice Cooke in the case of O'Leary v. Minister for Justice [2012] IEHC 80 (High Court, Cooke J, 24 February 2012). Mr Justice Cooke gave weight to the moral institution of the family, as protected by Article 41 of the Constitution, and confirmed that dependant parents of an adult child remain members of the family unit within the meaning of Article 41. He referred to right to rely on Article 41 when seeking State intervention to discharge a “moral obligation” towards non national family members in need of support and care.

In terms of the lawfulness of any interference by the State in family life, Mr Justice Cooke stated as follows;

“The core value enshrined in Article 41 is the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified, in the interests of individual members of the family or necessary in the overriding public interest.”

Mr Justice Cooke emphasized in his judgement that it would be an unbalanced approach for the Minister to isolate an analysis of dependency to purely financial aspects. He also confirmed the definition provided by Mr Justice Hogan in the judgement granting leave, that while dependency must go beyond “welcome” support, it is not necessary that the receiver of support be in a situation of destitution.

We would submit that in cases where a legitimate relationship of dependency and financial self sufficiency exists, and there are no exceptional circumstances to warrant a lawful refusal, Mr Justice Cooke’s judgement in the O’Leary case gives much scope for applicants to argue their case outside the strict financial thresholds of Minister’s guidelines.

Karen Berkeley 

Brophy Solicitors

NATURALISATION APPLICATIONS ON BEHALF OF MINORS

Recently we have achieved successful outcomes in varied naturalisation applications, including individuals who entered the state as minors, and applications based on Irish association.

The Laws governing citizenship in Ireland are set out in the Irish Nationality and Citizenship Acts 1956 as amended by the Irish Nationality and Citizenship Act 2004. The general criteria required by s15 is that the applicant must have reckonable residence in the state for a period of one year immediately prior to the application and four years in the eight year period immediately prior to that. Naturalisation however, is a particularly interesting procedure from the aspect that under s16 of the Act the Minister does have absolute discretion to grant naturalisation it’s applicants who may not have complied with ANY of these conditions. 

General Overview - Minor Applicants (including those aged up to 23)

All persons over the age of 18 must apply for Irish citizenship in their own right via Form 8.

Currently it seems it is policy that a person on stamp 2/2A under the age of 23 can use their parent’s permission to remain to support their application, provided they entered the country as a minor and part of a family unity. The procedure for calculating reckonable residence in such cases is as follows:

Periods spent in state until age of 16 

· On the basis of reckonable residence of either parent provided there is evidence to show the child has been present in the state.

Between the ages of 16 and 18

· On the basis of reckonable residence of either parent provided there is evidence to show that the child has been present in the state and has been registered for that period with the Garda National Immigration Bureau.

Adult Child between the ages of 18 and 23

· On the basis of reckonable residence of either parent provided:

a) There is evidence to show that the child has been present in the state for the period in question, and

b) Has been registered for that period, and

c) Part of the reckonable residence is accrued prior to child turning 18.

In summary, once an individual has entered the state as a minor to join their family, and remained in education until date of application for citizenship, there is a strong likelihood that the application will be successful. We have achieved positive results in such circumstances. 

s.16 Discretion – minor applications 

Moreover, it must be noted that under s.16(b) and s.16(2) 1956 Act provides for minors of Irish descent or Irish association. It is stated:

‘the Minister may in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

b) where the applicant is a parent or guardian acting on behalf of a minor of Irish descent or Irish associations;

s16(2) ‘for the purposes of this section a person is of Irish associations if –

(a) He or she is related by blood, affinity or adoption to a person who is an Irish citizen or entitled to be an Irish citizen

(b) He r she was related by blood, affinity or adoption to a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.’

Therefore, the Minister may use his discretion to waive the statutory requirements for granting naturalisation in respect of applicant’s who are related to Irish citizens (and notably those considered entitled to Irish citizenship) by blood, affinity or adoption, even if the Irish citizen in question/entitled individual, is now deceased.

It is thus apparent that there are a vast range of circumstances which can be considered compliant with the Irish Nationality and Citizenship Acts. However, it must always be emphasised that the Minister’s discretionary powers also entail that ANY application may be refused if the Minister decides there are grounds proper to render a negative decision. Naturalisation decisions cannot be appealed, but applicants are enabled to reapply. 

If you require any further information, or require assistance as regards these applications, please do not hesitate to contact Brophy Solicitors.

Naomi Pollock

Brophy Solicitors

PUBLICATION OF THE EMPLOYMENT PERMITS (AMENDMENT) BILL 2014

On the 23rd of April 2014, the Minister for Jobs, Enterprise & Innovation published the Employment Permits (Amendment) Bill 2014. The legislation proposes significant changes to the existing work permit regime. 

The new legislation seeks to update the provisions for employment permit schemes in line with policy and economic developments since 2007. The aim is to cater for a changing labour market, work patterns and economic development needs and to ensure the regime provides clarity and certainty to potential investors and employers. 

Notably, the Bill addresses the deficiencies in the existing legislation that were highlighted in the case of Younis. In this case, a loophole in existing legislation was exposed by a 2012 High Court judgement that overturned a Labour Court decision to award Mr. Younis over €92,000 in back pay. The High Court found that the Employment Permits Act, 2003 prevented an undocumented worker from seeking redress under labour law as the employment contract cannot be recognised. Mr. Younis had worked for seven years as a chef on pay of just ¢55 per hour but he was prevented from securing redress as his employment contract could not be recognised. The new Bill is stated to prevent employers from benefiting from illegal employment contracts in situations where an employee does not hold an employment permit but is required to do so. 

The legislation proposes to create nine categories of employment permit retaining the existing permits of a spousal/dependent employment permit, an intra-company transfer permit, and a contract for services permit. A critical skills employment permit will replace the existing green card and will permit immediate family reunification and provide what is stated to be a fast track to residency. A general employment permit will operate and be issued in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years or for other occupations apart from those included on the list of ineligible jobs. This permit equates to the existing work permit. Most notably there will be introduction of a reactivation employment permit, which will allow for return of individuals to employment, who had fallen out of the employment permit system through no fault of their own. There will also be provision for an exchange agreement employment permit, sports and cultural employment permit and an internship employment permit. 

It should be noted that none of these provisions are yet law and it could some time until they are enacted. To read more about the proposal reforms, see the Employment Permits (Amendment) Bill 2014 and government press release here. Also see a press release from Migrant Rights Council of Ireland welcoming the Bill here.

Rebecca Keatinge

Brophy Solicitors

INIS ISSUES NOTICE REGARDING CESSATION OF REGISTRATION FOR STUDENTS LINKED TO CERTAIN COLLEGES

A new notice on the INIS website indicates as follows:

“Following on from serious allegations regarding the practices of some Colleges which offer English language education to non-EEA national students, INIS and the GNIB have suspended the issuing of visas and residence permissions to non-EEA nationals seeking to enroll as new students with the following institutions.

• Eden College

• National Media College (formerly New Media College)

• Millennium College

• Business & Computer Training Institute

This suspension is pending further inquiries into the allegations of irregularities and further action may follow.”

Since 1 January 2011 a ‘New Immigration Regime for Full Time Non-EEA students was introduced by the Irish Naturalization and Immigration Service to set out new rules regarding studying in Ireland for non-EEA students. The guidelines require that Non EEA students studying language courses can stay in Ireland up to three years if they are studying a minimum of 15 hours a week, and have access to 3,000 in addition to course fees and health insurance. They are also required to evidence 80% attendance in order to obtain a renewal of their residence permission. Guidelines for the colleges were also provided at that time.

The notice on the INIS website follow reports in some of the Irish newspapers that some colleges were fabricating students attendances in order to facilitate the issuing of their student residence permissions.

The Irish Independent today states that Mr Rezaul Haque, who is the chief executive officer of Millennium College, indicated that his college was not guilty of any practices that would warrant suspension of the issuing of visas and residence permissions and he was "confident that everything will be sorted".

http://www.independent.ie/lifestyle/education/immigration-authorities-launch-visa-crackdown-on-schools-30190044.html

We would highlight to students who are attending the named colleges that the above notice applies only to those seeking to enroll as new students, and not those who are already enrolled in such courses. We trust that those students already enrolled and attending courses in the named colleges will be permitted to complete their course under the normal student conditions.