Wednesday, July 23, 2014

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

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

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

Wednesday, July 16, 2014

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

Wednesday, July 9, 2014

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