Caselaw Update: M.S.S. v Belgium and Greece (February 2011)

CASELAW UPDATE

The Europstat asylum statistics release coincides with a very significant decision of the European Court of Human Rights of the 21^st January 2011 which could now have an embarrassing impact on Ireland, in light of our very low recognition rates for asylum applications. The case, M.S.S. v Belgium and Greece, concerned an Afghan asylum seeker who entered the EU through Greece en route to Belgium where be claimed asylum from persecution in Afghanistan. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights. The Court of Human Rights also went further and found that the widespread and well documented deficiencies in the Greek asylum procedure resulted in asylum seekers being denied a fair hearing of their case, which was in breach of Article 13 of the Convention, i.e the right to an “effective remedy”. The Court held that if the Belgium authorities carried out the transfer to Greece, they too would be acting in violation of the applicant’s rights to an effective remedy under Article 13. One of the points canvassed on behalf of the Applicant was that the asylum acceptance rated at first instance in Greece was only 0.1%.

It is hard to believe that the asylum acceptance rate at the Office of the Applications Commissioner in Ireland is now less than Greece, which has now risen to 2.8%. Is it possible that a “Dublin 2” transfer of an asylum seeker from another Member State to Ireland could also be held to be contrary to the Convention on the basis that the low acceptance rates in Ireland? Certainly the fact that our acceptance rates at first instance are lower than Greece’s causes doubts as to whether an asylum seeker would receive a fair hearing in Ireland. Such a finding against Ireland would have been inconceivable until recently, but it may now be a possibility in light of the M.S.S. v Belgium and Greece.  We will watch with great interest as to how matters progress and will keep the updates coming as always.

03.02.11

Refugee Recognition Rates in Ireland (February 2011)

ASYLUM RATES OF ACCEPTANCE SHOCKINGLY LOW

You might have read the Irish Times article of the 21^st January last which revealed that Eurostat has confirmed that the Irish Government has refused 99% of all asylum applicants in this State at first instance in the third quarter of 2010. Which means that from 375 applications, the Office of the Refugee Applications Commissioner rejected 370.  Just five applications were successful. Compare this to our European neighbours’ positive decision rate – Netherlands is at 46%, Denmark is at 41%, Italy is at 36% and the UK and Germany come in at 24%. Against these rates for positive decisions of other countries, Ireland’s 1 % acceptance rate is all the more shocking.

03.02.11

Meeting of the Refugee and Immigration Practitioners Network (January 2011)

In our weekly update, the immigration team shared details of the recent Refugee and Immigraton Practitioners Network meeting. A number of interesting and relevant topics were discussed. 

 REFUGEE AND IMMIGRATION PRACTITIONERS NETWORK 

The Irish Refugee Council and the Immigrant Council of Ireland together set up the Refugee and Immigration Practitioners Network in order to bring together a range of practitioners working in the areas of asylum and immigration. The RIPN holds monthly meetings which are well attended by solicitors, barristers, NGO workers, caseworkers, etc. The meetings address a wide range of topics, depending on what matters are topical at the time and what High Court judgments have been recently issued or Department policy changes implemented. The meetings are usually held in the Law Society and are a very helpful way of keeping up to date with the constant changes in the area of Immigration and asylum.

The most recent RIPN meeting, on Tuesday 25^th January 2011, addressed the following topics:

• New Student Regime

• Lesbian/Gay/Bisexual/transgender asylum claims

• The Humanitarian Leave to Remain/Subsidiary Protection applications issue - we heard that the Department of Justice is currently deciding both applications, usually by the same decision maker simultaneously and often the HLTR application first. A number of High Court challenges have been brought regarding the non independent nature and predetermination of the Subsidiary Protection in contravention of the European Community Protection Regulations of 2006.

The meeting was well attended and generated a lot of discussion and sharing of information regarding the above topics. 

The RIPN should be commended on their good work. We look forward to attending further meetings in the future and posting more updates on changes and developments in this area. 

28.01.11

Reckonable Residency - Practical Problems (January 2011)

Our immigration team recently looked at some of the problems our cases are coming up against with establishing the required period of reckonable residency. 

RECKONABLE RESIDENCY – PRACTICAL PROBLEMS 

Many of our clients have been residing in the State for over five years under Stamp 4 conditions or under work permit conditions.  For one reason or another, they may have ‘gaps’ in their reckonable residency as recorded on their passports.  This may be due to a delay at their local GNIB office.  This week we reviewed several cases whereby the client was refused an application as they were not registered as having the requisite reckonable residency despite having been granted permission to remain in Ireland for 5 years by the Minister. Confused?  

An example worth referring to is that of citizenship.  Our client ‘A’ must be resident in Ireland legally for 60 months at the date of submission of his citizenship application.  He has resided under Stamp 4 for 5 years now and decides he wants to be Irish.  But the application is refused.  ‘A’, according to the officials in the Citizenship Section, has 59 months as recorded by the GNIB and evidenced in the stamps in his passport.  It’s not a huge deal for ‘A’ as he can resubmit his application immediately to show he fits the 60 month criteria. 

However,  bigger problems are created as a result of how the State calculates one’s reckonable residency.  If I were granted permission to remain by the Minister for 5 years, I shall assume that each of those 5 years are ‘reckonable’ for the purposes of a citizenship application.   However if there are gaps in registration evident from my passport for reasons that may be beyond my control, these gaps are deducted and I am notified that I do not qualify.  This issue could arise in the context of renewal of IBC status residency cards and Long Term Residency Applications.  

We are following such matters up but in the meantime we direct our readers to the judgement of Sulaimon and The Minister for Justice, Equality and Law Reform, 20091173JR which might be of interest. We would also invite your comments on any problems you have had in this area.

21.01.11 

New Student Visa Regime (January 2011)

In early January, our immigration team reported on an increase in queries on the new student visa regime, that was one of the topics of our seminar back in November.

NEW STUDENT VISA REGIME

This week we have been receiving a large number of queries concerning the new Student Visa recommendations which are now being carried out since the beginning of January. The changes regarding the criteria for renewals of stamp 2 permission, and the particular exemptions for timed out students are causing many of our clients considerable confusion. We would like to direct you to our article “New Student Regime for Full time Non EEA Students” from December 2010. This summarises the changes in the system which are now being implemented and might assist those who are trying to figure now they are effected.

We would also like to highlight to you the recent UK case of SAB and Others [2010] UKUT 441 (IAC). The case concerned an appeal of a doctorate student of Ghanian nationality who had consistently worked in excess of the maximum hours permitted by the UK Immigration Rules. It was found that the immigration judge was correct to dismiss the applicants' immigration appeal, although it was a significant interference with his private and family life to prevent him from completing his doctorate whilst in the United Kingdom. It was confirmed that curtailing his permission to remain and preventing him from completing his doctorate in the UK was a proportionate response to a person who totally disregarded his obligations under the Immigration Rules by working for hours excessive of those permitted over a prolonged period. The reasoning for this decision is summed up by the UK Tribunal as follows:

“The restriction on working hours imposed on students are hard to police and other things being equal a person who chooses to ignore the Rules should not expect to find it easy to persuade the Tribunal that he is entitled to remain on human rights grounds until his degree is finished. Any other result would seriously undermine the requirement that students take only limited employment and it would be unfair to those students who might wish to work longer hours than are allowed.”

The new student visa recommendations as recently implemented in Ireland bring the Irish student visa system more in line with that of the UK. We would think that the next year will see a low tolerance in respect of EEA national students in the State who are breaching the terms of their student visas. Such students may quiet likely be refused the renewal of their Stamp 2 permission to remain, or may find that their permission is revoked, if they have not complied with the conditions of their visa. Taking guidance from the UK case of SAB and Others, it is unlikely that the Irish courts will have any more sympathy for such students than the UK courts.

As always we look forward to hearing about your experiences of the new student visa regime and would be happy to advise on any problems you are having. 

13.01.11

A Mixed Bag: Delays, Caselaw Update and Update on 'Sham' Marriage case

In our weekly update before the Christmas break, we looked ahead to the New Year and issues that we want to address then, including delays in decisions on family reunion and humanitarian leave to remain applications. We also had some helpful caselaw to update you on. 

MIXED BAG: DELAYS, CASELAW UPDATE AND UPDATE ON 'SHAM' MARRIAGE CASE

We are aware that the Christmas period is a difficult time for many of our clients who have been patiently awaiting decisions on their applications for leave to remain, applications for visas and change of status applications. Many of our clients are separated from their spouses or children, or are being prevented from entering the employment market and are in difficult circumstances.  We are having great difficulties with on going delays in respect of the family reunification applications, and even in respect of some visa applications.   Some applicants for humanitarian leave to remain are waiting as much as 5 or 6 years for decisions in their cases. Many of our clients have actively engaged in Irish society through voluntary work, community activities and developing computer and language skills. They may have children in the State who were born here and who have settled into school life. It is always difficult to see the predicament of such clients, who might believe that no decision is better than a potentially negative decision. It seems unfair that having invested so much in this country, these valuable members of their local communities may live in constant worry regarding their future. We promise to do our best in the New Year to bring these cases to conclusion as fast as possible.

We are pleased to note that after a number of weeks of challenging an objection raised by An Garda Siochana relating to our clients' proposed marriage, the objection has been lifted and our clients are free to marry. The objection claimed that our clients' marriage was one of 'convenience.' The assertion was unfounded and resulted in a serious breach of our clients' right to marry as well as having a serious impact on their private family life. Following a series of investigations, searches and accusations our clients were advised that there now existed no impediment to their marriage. Proceedings in this case are continuing in the High Court and we shall keep you informed as matters progress. We would ask any interested parties to look at the decision of the European Court of Human Rights in O'Donoghue and Others v. the United Kingdom (application no. 34848/07).

Finally, we would like to draw your attention to a recent UK High Court ruling which has found that the UK government’s implementation of a temporary cap limiting the number of skilled Non EU nationals travelling to the UK was unlawful. Joint Council for the Welfare of Immigrants (JCWI) succeeded in their challenged and there is a helpful note on their website regarding the decision. The temporary cap had had the effect of reducing the numbers of skilled Non EU nationals travelling to the UK by approximately 5 %. The Home Office stood over the restrictive policy, and indicated that it was firmly committed to reducing the levels of net immigration. The High Court found that the policy had not been lawfully implemented, as it had not been subjected to parliamentary scrutiny, and there must be ceased. However, clearly if the policy is properly implemented, the cap on numbers may introduced once again in the New Year. For this reason, there is concern that there will be a huge influx of application for employment permits in the UK in the coming months.

Wishing you a very happy Christmas and New Year. We look forward to hearing from you in the New Year!

22.12.10

De Facto Relationships with Irish Citizens (December 2010)

In the middle of December, our immigration team gave some guidelines on  what applicants must show in order to establish a de facto relationship with an Irish citizen. This may be of interest to applicants who are not married but are in a settled relationship with an Irish national.

DE FACTO RELATIONSHIPS WITH IRISH CITIZENS

Residency in the State based on being the partner of an Irish citizen is generally granted on a case by case basis.  Such applications must be accompanied by submission of documentary evidence to show that the relationship has been of at least two years duration.  Where the couple does not reside together this can prove to be a difficult task.  In a recent case, our clients who have been together for just over two years made such an application in order to regularise the status of the non-Irish/non-EEA partner of an Irish citizen.   We submitted an application to the De Facto Applications Unit of the Department of Justice and Law Reform however we were concerned that we could not provide the requisite documentary evidence to show that our clients had been together for over two years.  They had not been living together and do not share a bank account.  The application was refused on the basis that the duration of the relationship could not be supported.  In this instance we were pleased however that the deciding officer employed the least restrictive measure by permitting the non-Irish partner to reside under Stamp 3 conditions for one year.  He had recently become undocumented.  The clients were also invited to make a further application once they could establish the duration of their relationship through documentary evidence.  

We would be interested in hearing your experiences with these types of applications.  As always we welcome your feedback and comments! 

10.12.10

Brophy Solicitors Seminar 'New Student Visa Regime' (November 2010)

In November, we held a seminar on a range of issues, including employment rights of part time workers, issues in family law, and the new student visa regime. We continue to run free seminars and invite any contributions or suggestions of topics for upcoming events. We will also be keeping you updated in future posts on how the new student visa regime is working in practise.

BROPHY SOLICITORS SEMINAR: 'NEW STUDENT VISA REGIME'

This week, we held a free public seminar at the Gresham Hotel, O’Connell Street. The seminar addressed the many queries we have been receiving from clients in respect of the new student visa regime, which is to be implemented on the 1^st January 2011.

Laura Gillen was our first speaker, and she dealt with the employment rights of part time employees, as many students in the State would be in this category of workers. Sarah  McCoy then gave a general outline of the changes to be implemented in the new student regime. In particular, Sarah addressed the new 3 year/7 year restrictions on the period of time which students will be permitted to remain in the State, and the special “timed out ” grace period for certain students. Karen Berkeley then looked into some more specific issues for students that may be affected by the new regime, such as entitlements of dependants of student’s to reside in the State and access to services for students. Karen also discussed the various avenues for students to access the labour market. Kevin Brophy was our last speaker, and he addressed a number of particular issues of family law.

During the questions and answers part of our seminar, we engaged in a very interesting discussion with the attendees. Many practical difficulties concerning the new student regime were raised. One matter of concern raised was that the recommendations do not deal with the issue of students repeating a year of their study course and whether this would be an exceptional circumstance that would warrant an extension of their permission to remain.  Also, it was noted that the 6-month grace period for students is completely exclusionary of any student whose stamp 2 permission expires after the 31^st June 2010. It was generally agreed that the recommendations are quiet unclear in respect of many areas, for example how they will affect accountancy students.

We would like to look further into some of these issues. If any of you or your friends are concerned that you will be effected by the new regime, we would be very interested to hear from you.  Please contact our immigration team to discuss your queries further.

Finally, we would like to thank all our clients past and present who attended the seminar, as well as those who attended our seminar for the first time.  It was great to have a number of representatives present from Immigrant support groups and NGO’s such as Migrant Rights Centre of Ireland and the Vincentian Refugee Centre. So far, we have received good feedback from the attendees, and we will certainly continue to organize further seminars like this in the future. We would be delighted to receive your feed back on what specific topics would be of most interest to you.

26.11.10

Successes! Visas for spouses of non-EEA national (November 2010)

 

 

We were pleased to report in our weekly update in November some successes! We had several visas granted to spouses of non-EEA nationals and we explained here some of the issues to be addressed in any application.

VISA FOR SPOUSE OF NON-EEA NATIONAL SUCCESS

Many people come to us for assistance in challenging negative decisions on applications for visas for their spouses or other family members to come and join them in the State.  We are pleased to say that this week, we have been successful in a number of applications/appeals that we made on behalf of our clients. 

One client in particular was absolutely distraught when her application for a visa for her non-EU husband to come and join her in Ireland was refused.  As a UK citizen she moved to Ireland to commence employment.  She applied for her husband, who is living outside of the EU to join her.  The reasons for refusal did not make sense to us or to our client and furthermore the decision to refuse was unlawful under the Free Movement of Persons Regulations S.I.656 of 2006 and the Directive on Free Movement 2004/38EC.   We made a lengthy appeal and relied on the entitlement of an ‘accelerated procedure’ that applies to visas for family members of EU nationals who want to make an application to join their family member in the State.  In less than two weeks we were pleased to advise our client that the Visa Office in Dublin approved our appeal and that arrangements would be made for her husband to travel to Ireland within a couple of weeks. 

Visa applications are tricky and we spend considerable time drafting detailed and informative applications supported by a large volume of documentation and essential information.  Spending time on such applications and appeals usually pays off.  We are however hoping to succeed in further visa appeals that we have recently submitted for spouses of Irish nationals.  Unfortunately and to many people’s disbelief such applications tend to be less straightforward and take a considerably longer period of time to progress! As always, we shall keep you informed on any further developments!

19.11.10

Sham marriage? (November 2010)

Unfortunately, this topic has regularly featured in our weekly updates. In mid November, our clients were notified less than two hours before their marriage that it was suspected of being a 'marriage of convenience'. Our weekly update, posted below, was on the topic of so-called sham marriages. We have subsequently been granted leave to challenge the decision in this case and are looking to secure damages for our clients. We will keep you updated. 

 

SHAM MARRIAGE?

We have often spoken about this topic through our website, weekly emails and our seminars. The matter arose in a very direct way this week when our clients were notified by a marriage registrar that their marriage would not be proceeding due to the fact that An Garda Siochana lodged an objection. Our clients were notified less than two hours before they were due to marry.   The objection openly stated that one of our clients was marrying to circumvent immigration laws and was involved in what the Guards call a ‘marriage of convenience.’  

So called ‘Sham marriages’ have hit the news papers again and with these reports comes a hail of investigations, arrests and objections to marriage.  Of course we must protect the integrity of our immigration system but at what expense? By launching an attack on the institution of marriage which, is itself protected by our very own Constitution?  Arguably ‘sham’ marriages in themselves attack the very essence of marriage but the reaction of the State greatly endangers couple who marry for love and marry to establish a meaningful family life in the State.  Our clients are an example of a couple that has been together for almost three years.  They most certainly do not exhibit any of the ‘tell tale’ signs that have been listed as indicatiors for sham marriages by the Department of Social Protection, i.e. a couple who don't speak the same language, a man holding all the documents for a woman, the bride and groom not knowing each other’s address at the interview.  Our clients were mortified, furious and incurred great expense at the decision of the registrar not to marry them.  Their family and friends were shocked and stunned that such an objection could be raised against a couple who prepared for quite a substantial wedding ceremony including many family and friends, some of whom travelled to the State for the celebrations. 

We seek to issue proceedings and challenge the decision of the registrar.  We want a full investigation into the objection raised and we want to challenge the procedure followed by the registrar for marriages.  We also want to address the fact that our clients spent €10,000 on a day that was wasted and ruined.  Not only was their right to marry completely violated but also this incident was an attack on their good character and they are adament that their name is cleared. We are determined to follow this matter through and get justice for our clients who have been so badly mistreated by this State. 

12.11.10

Seminar on “The Free Movement of Workers in Ireland” (November 2010)

Back in November, our immigration team attended a Seminar on 'The Free Movement of Workers in Ireland' which had a full programme of interesting speakers. Our solicitors picked up on some interesting issues that were discussed in the weekly update at the beginning of November.

SEMINAR ON "THE FREE MOVEMENT OF WORKERS IN IRELAND"

This interesting Seminar was hosted by the Irish Representative on the European Network on Free Movement within the EU. It was an opportunity for lawyers and other professionals working within the EU Treaty Rights framework to discuss the current position of EU Treaty Rights law in this State in light of recent developments regarding European Court of Justice judgements and also issues raised by the pending Immigration Residence and Protection 2010 Bill. By coincidence, the seminar was being held at the same time as the Minister of Justice re opened deliberations on the details of the 2010 Bill at the Committee Stage.

Speakers at the seminar included Professor Kay Hailbruibber of the University of Konstanz, Germany, Catherine Cosgrave and Hilkka Becker, senior solicitors of the Immigrant Council of Ireland, Jonathon Tompkin, Director of the Irish Centre of European Law and a number of other notable speakers from the North/South Ministerial Council, FLAC and the Medical Council of Ireland.

The reoccurring point of the seminar was ironically that the major development in the area of law known as “Free Movement of Persons” is that it is shifting away from a requirement for movement. In other words, the case law of the European Court of Justice appears to be moving towards the concept of the EU Treaty rights derive from Union Citizenship itself, rather than from citizens of the Union moving from one member state to another as has traditionally been the case. That movement between states may not be necessary to incur all the rights and entitlements of union citizenship is a very progressive step forward, with huge potential consequences across the EU. For example, all Irish citizen children would be entitled to have their non EU citizen parents reside with them in the State, and so many of the previously deported parents may be entitled to be granted visas to return to the State. In fact, much of our domestic law in respect of Irish citizens rights to family reunification would be called in legal doubt.  We have already highlighted the European Court of Justice case of Gerardo Ruiz Zambrano v Office National de L’Emploi where the advocate general’s opinion confirms this new approach. 

Other issues raised at the seminar was the on going frustrations experienced by all practitioners in respect of the Department of Justice inconsistent decision making, lack of transparency and disregard for general procedural safeguards. The example of the previous policy to prohibit all applicants from working during the EU Treaty Rights Application process was cited, and the subsequent High Court proceedings taken by this office in the case of Decsi v Minister for Justice.

Further matters discussed were access of union citizens and their family members to social welfare benefits from outside of their own state, the habitual residency conditions applied which may prohibit the free movement of citizens, and the particularly complicated situation of Romanian and Bulgarian nationals. Discussions also centred around the proposals in the Immigration Residence and Protection 2010 Bill to define and criminalize marriages of convenience providing for a potential five year sentence on conviction.

Overall, the general consensus at the seminar was that the area of law know as “Free Movement of Persons ” and the EU Treaty Rights which derive therefrom is progressing at a very fast pace by way of European Court of Justice judgements. Meanwhile, at a domestic level, resistance to such changes and general administrative processes at odds with the European law is causing severe infringements of the fundamental rights of countless Union citizens and their family members.

The seminar raised many issues very relevant to a lot of our clients’ cases and our immigration team will follow the upcoming European Court of Justice judgements with much interest. We will keep you updated of the big ones!

05.11.10