Wednesday, February 2, 2011

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. 


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!

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