Happy New Year from the Immigration Department!

This is our last day in the office until the New Year and we would like to thank all of our clients for their services, kind comments and interest in our blog!

The Immigration Law Department of Brophy Solicitors has had a busy and eventful 2011! We are pleased at how many of our difficult and complex immigration cases were resolved this year. Of course the ground breaking ECJ decision of the year, Ruiz Zambrano led to a major overhaul of policies concerning the rights of Irish citizen children and their family members. We anticipate further developments both on a domestic level and in the EU arising from this judgement. We continue to work closely with our clients to whom this decision applies and hope that 2012 will see the resolution of outstanding cases.

We saw a huge growth in work involving EEA family visas and Irish Spouse visa appeals and applications as well as more complex dependant family member visa applications and appeals.  Citizenship and Family Reunification applications continue to pose huge delays and backlogs for clients and we hope that 2012 will bring policies that will make way for a more coherent and efficient system.  We have a number of cases that we have recently issued proceedings on and await the outcome in 2012 –as always we shall endeavour to keep our clients and readers informed of developments in our casework!

We have really enjoyed working on our blog this year and welcome all of our readers’ comments and suggestions! We are very pleased with how the Irish Immigration Blog has developed and we will continue to update the blog and publish interesting articles in 2012! So thank you to all of our followers!  Next year, we look forward to the launch of the new and expanded Brophy Solicitors Website which will feature news articles, office developments, galleries, guest writer articles, events and lots of information for all of our clients so watch this space!

None of our work on the blog, website, twitter and Facebook would be possible without our legal executive for Immigration, Ruth Jones, our Immigration secretary, Johnathan McDonagh, and  our immigration interns Clara Enright, and Barrie Scott.  We really appreciate all of your hard work and research over the last few months and look forward to working with you in the New Year!

Again, we wish you and your families a happy holiday and a wonderful New Year!

Sarah, Karen, Irene and Rebecca. 

Judgment expected this afternoon in Pakistani woman's claim to remain in Ireland

Today we await the judgment of Mr Justice Gerard Hogan on a case concerning a Pakistani woman, Rizwana Aslam. The woman in this case is eight months pregnant and was unable to attend court yesterday due to severe abdominal pains. In court her counsel argued that she should be allowed leave to remain in the state with her husband who has refugee status in the State.

Counsel for the Minister argues inconsistencies in their stories concerning their marriage, which Mr Fakkhr Ud Din, Ms Aslam’s husband, claims was conducted by proxy. He also announced their intention to marry in a civil ceremony next month.

It is claimed on behalf of Ms Aslam that she would suffer religious persecution should she be returned to Pakistan. This is a claim counsel for the Minister calls irrelevant in his argument that she should be returned to the UK where she first sought asylum.

Judgment is expected at 2pm. 

UK and Ireland commit to increased immigration co-operation

Wednesday December 20th saw the UK and Ireland join forces in recommitting to more stringent immigration policies and controls. It aims to protect what is known as the Common Travel Area, which was established in the 1920's with a view to free movement for nationals between the countries. The Area is comprised of the UK, Ireland, the Channel Islands and the Isle of Man.

Minister Shatter signed a statement with UK Minister for Immigration Damien Green along with a Memorandum of Understanding with an intention to work towards joint standards for entry. This is with a view to eventually enhance electronic border systems to identify those with no right to enter the Common Travel Area before they arrive at the border. A further data-exchange initiative will be launched which will involve the exchange of information such as finger print biometrics and biographical details, particularly from 'high-risk' countries, as part of the visa issuing process. The Irish Naturalisation and Immigration Service (INIS) said the aim of this is to 

'help prevent abuses of the CTA arrangement while protecting its long-established benefits of trade and tourism. The move could create considerable savings for both countries on removing foreign nationals with no right to stay'.

Previous close co-operation between the countries has proved effective in various cases. Minister Shatter was hopeful of the plan's potential in relation to tourism and economic benefits. He further stated

'Today's agreement provides a platform for greater cooperation on immigration matters, including joint action to protect the CTA from abuse by preventing potential immigration offenders from travelling to Ireland and the UK'. 

High Court Judgement in Naturalization Delay Case

Case Summary; Dana Salman v Minister for Justice and Equality, Judgement of Mr. Justice Kearns of 16.12.2011

This case saw the applicant compelling the Minister to administer a decision in his application for naturalisation. The applicant is a refugee originally from Iran. Application for naturalisation was made in early 2008 – thus a delay of three years and nine months was at issue.

This delay caused severe inconvenience to the applicant; he found he was frequently detained at immigration control when he attempted to travel outside the state and for that reason he stopped travelling. The eve prior to the substantive hearing of the proceedings the applicant was issued with a certificate of naturalisation, therefore the sole matter that was to be determined between the parties was the cost of the proceedings.

It was argued by the applicant that the respondent’s statutory duty to consider the application should not be confused with his discretion as to the outcome of the application. Citing Article 34 of the UN Convention on the Status of Refugees and Stateless Persons, 1951 the applicant accepts that there is no requirement to grant citizenship to refugees but there is an obligation to expedite the process and that this requirement has been ignored in the instant case.

Further the applicant argued that even though the Minister is given no time period by law in which to make a decision, there is nevertheless a duty to make a decision within a reasonable time. It is argued that the above delay is not a reasonable one.

Having taken into account article 9.1.2 of the Constitution, Section 15 of the Irish Nationality and Citizenship Act 1986, the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the Protocol of 1967 Article 34 the court stated that

‘The respondent in the instant case was not granted an unfettered discretion to issue a decision on the applicant’s application at his leisure, or not to issue a decision at all. He was under a duty to exercise his statutory powers in a fair and reasonable manner.’

The court cited Cooke J in the 2010 case of Nearing of 2010;

‘Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case’. 

Having considered this in light of the present circumstances Kearns J found that in this case there was no evidence before the Court of any system in place for dealing with applications for certificates of naturalisation. In particular, the Minister did not indicated specific reasons for delay and refusing to explain the extended period of delay past the average time put forward by the department the court held that there was no evidence that there was in place a fair and rational system for the processing of applications. The court held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded.

Such a decision inspires hope for the many awaiting decisions from the Minister in this regard and  is welcomed as a step forward in decreasing the waiting times. 

Brophy Solicitors

20.12.11

The Minister's reliance on blanket policies to refuse visa/residence applications

We are working on a number of cases where the Visa Office has relied on  a “General Policy” to refuse our clients' family members a right of entry and residence to the State. The policy has been described to one of our clients as follows;

“It is not the general policy of the Department of Justice and Law Reform to allow extended family members to automatically migrate on a long term basis to Ireland”

Thus, a blanket policy appears to be in place to the effect that a very large number of potential applicants could be refused.  However, this policy was not made available to the public domain.

We raise the questions of who constitutes an extended family member as per this general policy? Why is applied in some cases and not others? In respect of whom can an exception be made?

It appears to us to be very unsatisfactory that the Minister is relying on policies which are not made public, to make decision effecting fundamental rights in respect of family life.

We draw attention to the obligation on the Minister to make available to the public all policies he will seek to rely on. Under Section 16(1) of the Freedom of Information Act 1997 the Minister is required to prepare and publish ‘rules, procedures, practices, guidelines and interpretations used by that body … for the purposes of decisions’ and section 16(5) requires them to be made available to the public

It has been emphasised by both Irish and UK courts, the importance of making State policies available to the applicants. Furthermore, the superior courts have refused to uphold a decision whereby reliance was made on a blanket policy without full reliance on the applicant’s individual circumstances. Of useful reference are Ezenwaka and Anon v MJELR [2011] and of the UK Superior Courts, Quila and Bibi v Secretary of State for the Home Department [2011].

We are concerned at the appearance of such a blanket policy and await the Minister’s response to our query.

Brophy Solicitors.

Hungary - potentially the next member state to be found unfit to return asylum seekers to?

Last week we prepared for an urgent injunction application to prevent a Somali client’s deportation to Hungary. Instead, we obtained a last minute undertaking from the Department of Justice that the  deportation would not be carried out at least until mid January. 

The case is somewhat unusual as it is not yet in the public domain that asylum seekers and refugees returned/deported to Hungary  risk destitution. The case also highlights the potential for a second waive of cases similiar to the "Greek Transfer" cases , but this time in respect of Hungary . 

Our client is a Somali national against whom a deportation order has recently been issued on the basis that he had previously been granted refugee status in Hungary. However, on obtaining status in Hungary, out client received no accommodation or social assistance in any form. Unable to speak Hungarian, he found no possibility of gaining employment. This, coupled with no access to welfare support led him to become destitute and homeless. He had no means to pay for accommodation, food or other basic subsistence requirements. He, along with other Somali nationals, slept rough on the streets, and relied on local mosques in Budapest to supply food and blankets. Due to this lifestyle and particularly in such a climate as Hungary, he became very ill. The situation was so dire that he felt forced to return to Somalia at the end of 2006 and was able to do so due to his family’s assistance.

As the situation in Somalia worsened in 2007 and 2008, and our client and his family were subjected to many attacks by the local militia, he was tortured and most of his immediate family were murdered.  He thus fled Somalia again, and entered Ireland to claim asylum.  Three years later, he now faces deportation back to Hungary. We are currently urgently seeking an injunction to stay any deportation which may occur. We do so appealing to protection grounds pursuant to the Refugee Act 1996, the UN Convention Against Torture, the European Convention of Human Rights and humanitarian grounds of the Immigration Act 1999.

In particular, we are relying on a 2012 UNHCR Report called “Refugee Homelessness in Hungary” details the dire situation ongoing for Somali refugees in Hungary. This report corroborates fully the fear of our client that he would again be rendered destitute if returned to Hungary. Of particular relevance to our particular client, the report outlines those refugees who have continued onto other EU Member States and who were forcibly returned as those at greatest risk. Furthermore, the report identifies Somali nationals as the group at most risk of homelessness in Hungary.

“Caught in a vicious circle of hopelessness and without any examples of successful integration among Somali refugees in Hungary, most research respondents opt for onward movement to other European counties. Inadvertedly punished with homlessness and hunger as a result of exercising freedom of movement and without access to an adequate level of community based-support services in Budapest, a number declared their intention to engage in repeat onward movement…” (Ch.3 Para.2)

We consider the above report to be of substantial weight as it has recently been relied upon in Austrian Courts to prohibit the state from returning refugees and asylum seekers alike to Hungary.  

The denial of any welfare service to asylum seekers, thus causing a situation of destitution was found to amount to a breach of Article 3 of the ECHR in the UK decision of R (Limbuela) v Home Secretary Of State for the Home Department [2006].

Similarly in M.S.S. V Belgium and Greece [2011] the Grand Chamber of the European Court of Human Rights determined that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, thus any transfer to Greece would effect a breach of the Applicant’s rights under Article 3. This judgement was ground breaking, in that it was the first time a Member State of the EU has been found to be actively operating an asylum system that amounts is effectively  “Inhumane and degrading treatment” for asylum seekers. The consequence of the M.S.S. case was a large amount of injunctions being granted by various courts with the Member States to prohibit “Greek transfers”.

The situation concerning refugees in Hungary, particularly returning Somalis, is such to mirror the situation decided upon in Greece. 

Brophy Solicitors

19.12.11

New Stamp Introduced

On the 1st December last, The Department of Justice and Equality issued a new stamp to be introduced to the Irish Immigration system, Stamp 0. This is the newest edition to Stamps 1, 1A, 2, 3 and 4.

The new stamp concerns temporary and limited permission to reside in Ireland and is available to new cases only. Essentially it has come about through a re-structuring of the stamp system and effects only an administrative change. It is intended for specific purposes only such as visiting academics and purports no pathway to permanent residence in Ireland. If effects to extend beyond the ordinary 90 day tourist visa.

The person must be self-sufficient of fully supported by a sponsor and will receive no State benefits whatsoever for their duration in the State. It may be necessary under certain circumstances for them to hold their own private medical insurance. No specific or seperate procedure of application is to be used, other than the normal application process.

Brophy Solicitors

Standing Up For Migrants Rights

A survey by the One Foundation, reported in the Irish Times yesterday, has found that TDs fear that showing support for migrants may damage their electoral chances. Almost two thirds of those TDs surveyed said that they had encountered racist attitudes while canvassing.

This survey follows the recent resignation of Darren Scully, Major of Naas and Fine Gael Councillor, who stated in two separate radio interviews that in the future, he would refuse to represent African constituents.

Such attitudes are deeply depressing and contrast sharply with the positive attitude towards integration and life in Ireland expressed to us by many of our clients. It also contrasts sharply with the positive innovation of citizenship ceremonies for new Irish citizens that were recently introduced (see our post). 

We followed with interest  the ceremony held in Cork last week where retired High Court judge Mr Justice Bryan McMahon welcomed 635 “new Irish”. 

Mr Justice Bryan McMahon welcomed the “new Irish” saying: “The State, in granting you citizenship, does not ask you to surrender your own identity . . . when you make your life here, do not forget the country or the culture you come from, bring your stories, your music, your games – enrich our lives.”

The introduction of the citizenship ceremonies is certainly a positive, if limited step, towards addressing integration of migrants into Irish society. But much more is needed. We recall that the programme of the current government promised to: “promote policies which integrate minority ethnic groups in Ireland, and which promote social inclusion, equality, diversity and the participation of immigrants in the economic, social, political and cultural life of their communities.”

The Integration Centre recently launched a Roadmap to Integration that puts forward a number of affordable and practical proposals. You may recall our previous post on this important document. We again welcome implementation of such a roadmap and hope that an inclusive regime will help overcome the negative attitudes highlighted in this survey of TDs.

Brophy Solicitors

12.12.11