Thursday, December 11, 2014

CASE SUMMARY: CA V REFUGEE APPEALS TRIBUNAL (2014) IEHC 504

On the 1st of October 2014, Barr J of the High Court directed that the decision of the Refugee Appeals Tribunal to refuse an asylum application to a Nigerian national be referred back to the Tribunal for a further decision before a different member of the Tribunal. The applicant in this case claimed that he was fearful of returning to his country on grounds of his sexuality. The High Court held that the Refugee Appeals Tribunal (RAT) fell short of its duty to give a clear, reasoned and rational decision for its refusal. 

Many aspects of the RAT decision were criticised by Budd J in this case. Budd J stated that the RAT did not take into account the country of origin information submitted by the applicant. The Tribunal had found that the applicant in this case was "unlikely to face persecution from State agents in Nigeria.” Budd J stated that this ran contrary to the information submitted by the applicant on his previous treatment in Nigeria that included beatings by police officers. Similarly, Budd J rejected the Tribunal’s finding that the applicant could relocate internally to the city of Lagos safely. The learned judge found that on the facts, such internal relocation was not a viable option for the applicant. The High Court instead found that there was strong evidence that homosexuals did not live openly in Lagos for fear of persecution. 

The Tribunal had stated that the applicant's reasons for not claiming asylum in the United Kingdom were not plausible. The Tribunal generally did not find the applicant’s story credible. Budd J however held that it is not sufficient to merely state that the applicant’s version of events was implausible; the decision of the RAT must be supported by reasons. 

The Tribunal had also stated that: "It is clear from the information provided by the applicant that he has not suffered any persecution for a Convention reason in Nigeria, nor is he likely to face persecution upon returning to his country of origin.” Budd J stated that this was not sustainable as the Tribunal failed to give adequate reasoning for this assertion. The learned judge also stated that there is no requirement on the applicant to prove that he is likely to suffer torture or inhumane or degrading treatment, rather the proof required is that he has a well-founded fear of torture or inhumane or degrading treatment. 

Budd J in the case granted leave to the applicant to seek certiorari of the decision of the Tribunal and he made an order quashing the decision of the Refugee Appeals Tribunal. Budd J directed that the case be referred back to the Tribunal for a further decision before a different member of the Tribunal.

Rebecca Keatinge

EMN IRELAND REPORT ON UNACCOMPANIED MINORS - 2014

The European Migration Network (EMN) Ireland last week produced a report detailing the policies, procedures and circumstances surrounding unaccompanied minors. Unaccompanied children can be defined as children who are not in the care of a responsible adult. The report coincides with a general upward trend in the numbers of unaccompanied minors in the EU and a decrease in the number of unaccompanied minors in Ireland. The primary reason for this was cited as economic factors. 

In the report, many of the shortcomings of the system are called into question. The report accepts that major improvements have been that have addressed the specific issues faced by these children. Prior to the reforms, unaccompanied children were placed in hostel-based care. The report notes that this was wholly inadequate as it failed to recognise that the children were already in a uniquely vulnerable position and hostel-based care was unsuitable for the needs of children. The report states that the lack of regional oversight and inconsistencies in care around the country have been improved on greatly in recent years. However, the report states that more resources are required outside the Dublin region and explain that there is a lack of comprehensive data on the situation facing children in rural Ireland especially. 

In recent years, TUSLA have been given the responsibility of supporting these children through foster care and residential placements. This is far more child-friendly than the hostel-style care in place before. The recent ease on the State resources (due to the reduction of unaccompanied children in Ireland) has contributed to the improvements in the system. 

There is one noteworthy recommendation contained in the report in relation to family reunification. There is no policy in Ireland for the repatriation unaccompanied children however the report recommends that there be follow up family reunification as part of the after-care of children. The report concedes that this is a difficult task as these children often have a general mistrust of people and therefore are unlikely to divulge any information about their family or country of origin. 

The report notes that the lack of legal status afforded to this group places them in a position of unique vulnerability. Often, the children are sent to Ireland to seek work or to reunite with family. It would seem from the report that the principle difficulty with the situation is that the unaccompanied children fall into the categories of children and immigrants. There is a natural tension therefore between the child protection concerns and the immigration concerns. It appears that greater legal recognition of the status of such unaccompanied children will afford them greater protection. It may also act to reduce their vulnerability, improve their quality of life and ensure that difficulties in regularising their status when they turn 16 are averted. 

Rebecca Keatinge 

Thursday, December 4, 2014

MIGRANT RIGHTS CENTRE IRELAND REPORT - 2014

A recent survey conducted by the Migrant Rights Centre Ireland has revealed that 21% of undocumented migrant people in Ireland have lived here for over a decade. The survey is the first of its kind in Ireland. 540 migrants were questioned in the survey and opened up about their lives in Ireland, detailing their employment and family situations. It gives a clear snapshot of the lives that migrants are living in Ireland including the types of industries they work in and their emotional connections to Ireland. The research conducted by the MRCI has also shown that 81% of undocumented migrants in Ireland have been here for 5 years or more. 

The survey sheds light on the particular difficulties faced by migrant workers in Ireland. One account highlights the difficulties of being unable to travel. One respondent in particular was unable to return to his county of origin for his father’s funeral. On this basis, the report has drawn attention to the stark contrast between the Taoiseach’s condemnation of the treatment of the undocumented Irish in the US and his called-for change in treatment on humanitarian grounds with the treatment of undocumented in Ireland. It is clear that most migrant workers have financial and emotional ties in Ireland and share similar challenges to the undocumented Irish in the US. The Taoiseach’s inconsistency in this matter has therefore come under fire. 

With the survey also illustrating that a large proportion (one third) of those surveyed has children living in Ireland, a spokesperson for the MRCI has stated that the problem of undocumented workers in Ireland can no longer be ignored by the Government. 

The research has also shed some light on the educational attainments of the migrant workers in Ireland. It has noted that 53% of the respondents have obtained a third level qualification. This figure, coupled with the figure that 87% of those surveyed are working, acts to show that most migrants in Ireland are hard-working and educated individuals. 

This survey will hopefully act as an impetus for the Government to make some much needed reforms in the area of undocumented in Ireland. 

Rebecca Keatinge

Friday, November 28, 2014

FAMILY REUNIFICATION FOR REFUGEES – SUPREME COURT JUDGMENT IN AMXS V MINISTER FOR JUSTICE

The Supreme Court delivered a judgment on the 20th November 2014 which gives some clarification to the Minister’s decision-making process in respect of family reunification applications for refugees pursuant to Section 18 of the Refugee Act 1996. The case concerns a very typical scenario of our clients whereby the refugee applicant has a strong dependency/support relationship with his family members, but he or she may be not be in position to financially support them on their arrival in the State. Often the refugee applicant is still a student themselves.

The facts of the case

In May 2009, the Somali national applied to the Minister for family reunification in respect of his dependent mother and siblings. The Minister’s decision to refuse the application was challenged by way of High Court Judicial Review proceedings and quashed by Mr Justice Cross in February 2012. The Minister was then required to carry out a re-consideration of the application and further evidence of the family members’ ongoing dependency on the applicant was submitted. 

The Minister refused the applications for the second time in July 2012, finding that the family members were dependent but refusing the application on financial grounds, i.e. that they posed a risk of financial burden to the State if the application was granted. The decisions in respect of the Applicant’s mother and minor sibling were challenged before the High Court for the second time. The Applicant was successful before the High Court and the Minister then appealed the High Court’s decision to the Supreme Court.

The findings of the Supreme Court

The Supreme Court found that the Minister is entitled in a general sense to refuse family reunification applications under Section 18(4) on the basis of financial grounds, i.e. in cases where the applicant is not in a position to support the family members if they come to Ireland. This differed from the High Court’s finding that that the Minister could never refuse an application under Section 18 solely on the basis that the family members may be reliant on social welfare in the State. 

However, the Supreme Court emphasized that while the Minister could refuse an application on financial grounds, the Minister must properly apply the principle of proportionality to the case. 

Mr Justice Frank Clarke stated as follows;

“The obvious inference to draw is that the absence of financial support is to be an exclusionary factor in respect of general applications but is only to be a factor to be taken into account amongst others in the case of those to whom the family reunification provisions apply”

The Supreme Court emphasized that significant weight must be given to the fact that the Oireachtas has chosen to confer a special entry status on dependent members of the extended family of a refugee. 

“In that context, it is difficult to see, without more, the mere fact that there may be some limited cost to the State could be decisive.”

The Supreme Court then carried out a balancing exercise between the family rights of the applicant against the exposure to risks for the State. In this regard, it was stated as follows;

“in the absence of any specific factors in relation to these applicants, it is difficult to see how the weight to be attached, in the context of family reunification, to the general right of the State to control immigration, could outweigh the factors which favour family reunification in this case”.

It was confirmed that the courts should only interfere with the Minister’s exercise of his discretion when the Minister is clearly wrong, and in this case, Mr Justice Clarke confirmed “I am satisfied that the Minister’s balancing exercise is clearly wrong”.

It was therefore held the High Court was correct in finding the Minster’s decision was disproportionate and should be quashed. 


Karen Berkeley

Thursday, November 20, 2014

OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge