Friday, February 24, 2012

New body of case law prohibiting Dublin 2 returns to certain Member States

Since the Court of Justice judgements in the “Greek Transfer” cases (see NS and Others v SSHD (C-411/10) and in MSS v Belgium and Greece) in 2011, Members States are now effectively prohibited from applying the Dublin 2 Regulations in order to return asylum seekers to Greece. Following on from these judgements, it is not surprising that a body of case law is now developing to challenge Dublin 2 returns to other Member States with poor records in respect of the treatment of asylum applicants.

In December 2011, we blogged about the Austrian Courts prohibiting Dublin 2 returns to Hungary due to the potential risks of a breach of Article 4 of the Charter of Fundamental Rights – which prohibits torture and inhuman or degrading treatment or punishment.  Relying on these judgements we have been able to secure an undertaking from the Department of Justice not to deport a client of this office to Hungary.

We now wish to highlight some further decisions coming from the Belgian courts which suspend Dublin 2 returns to Malta for similar reasons. The Belgian Court’s decision, of the 6th  January 2012, found that the applicant, of Somali nationality, had demonstrated an arguable claim based on Article 3 of the ECHR that he would be subject to inhuman treatment were he to be returned to Malta and thus suspended the execution of the State Secretary’s decision.  The judgement is written in Dutch and summarized briefly in English by the UNHCR. 

Summary of Belgian court’s judgement;

The applicant had previously applied for asylum in the Netherlands, but had been returned by that country to Malta in 2010 pursuant to the Dublin Regulation.  He alleged that in Malta, he was left homeless and that, due to his failure to be provided with legal aid, his asylum request had not been properly considered.  The applicant then requested asylum in Belgium on 27 October 2011, which the State Secretary for Asylum and Migration, Social Integration and Poverty Reduction refused to examine and then ordered his renewed transfer to Malta on 21 December 2011. The applicant, who was detained and scheduled to be transferred on 9 January 2012, requested suspension of the execution of the State Secretary’s decision under extremely urgent procedure on 5 January 2012. 

Citing the report of Mr Thomas Hammarburg  - Commissioner for Human Rights of the Council of Europe – dated 9th June 2011, the Belgian Court found that there were significant deficiencies with Malta’s detention policy regarding asylum-seekers and the living conditions in the detention centres, as well as clear shortcomings with respect to Malta’s asylum proceedings concerning legal aid and the asylum proceedings, partly caused by the detention policy. The Court found that the Belgian authorities should have been aware of these shortcomings and taken them into consideration in their decision to refuse to consider the applicant’s asylum request and transfer him back to Malta and which they failed to disprove in written pleadings.

Mr Thomas Hammarburg’s report identifies many concerns regarding Malta’s policies in respect of asylum seekers. 

Brophy Solictors
24.02.12 





Council of Europe report on situation in Malta for asylum seekers, June 2011

The Commissioner for Human Rights of the Council of Europe – Mr Thomas Hammarburg  - has recently published a report detailing the Council’s concerns regarding the situation of asylum seekers in Malta. The  report, dated 9th June 2011, identifies the following concerns regarding Malta’s detention policy:

-         It provides for mandatory administrative detention for all arriving migrants, including asylum seekers.  The Commissioner recommended that Malta should provide for “the presumption in favour of liberty under national law, and establish a framework for the implementation of alternatives to detention.”
-         Malta has failed to comply with ECHR July 2010 judgment in Louled Massoud, which found a violation of Art 5 in relation to detention of an asylum seeker, whose claim had been rejected for almost 18 months.  The Commissioner recommended that “speedy and effective remedies” should be available to migrants to challenge their detention.

The report identified the following concerns regarding the living conditions in the detention and open centres:

-         The Commissioner noted that living conditions in open centres, where migrants released from detention are housed, vary substantially, with adequate arrangements in smaller centres that cater for some vulnerable groups (families with children, pregnant women, unaccompanied minors) and “far more difficult” conditions in the bigger centres.  The Commissioner found one such tent village in a larger centre “clearly inadequate” even for short periods of time and recommended it be closed.  He also noted that conditions had reportedly deteriorated at another complex housing vulnerable groups since the Commissioner’s visit following new arrivals from Libya. 

-         Re: vulnerable groups— the Commissioner noted that Malta’s policy of mandatory detention of members of vulnerable groups was “at variance with international standards,” which provide that such measures should only be used as a measure of last resort, and that he was concerned about the lengthy period of time unaccompanied minors and people with disabilities or serious physical or mental problems spend as a result of the lengthy procedures for establishing their vulnerability.  The Commissioner also noted that these smaller facilities that house vulnerable groups often become full so that members of these groups, including those returned from other EU countries under the Dublin Regulations often end up in the bigger centres that “are totally inadequate for this purpose.”

The report also expressed concern, with respect to legal aid and asylum proceedings, that despite some progress in this area, Malta needs to provide legal aid and improve access to case files for asylum seekers and their representatives and the motivation behind asylum decisions.

The Commissioner, who had found that the system in place to support migrants “currently perpetuates their social exclusion and leaves them at serious risk of destitution,” recommended that Malta make available financial support and social assistance to all beneficiaries of international protection in Malta, rather than limiting financial assistance to those living in the detention centres.   With respect to the Commissioner’s concern about reportedly prevalent racism and xenophobia against migrants in Malta, he recommended that the government do more in terms of developing a “robust public information strategy to favour [migrants’] local integration.”

Brophy Solicitors 
24.02.12 



High Court finds in favour of Irish citizen married couple fighting for a right of residence in the State for their dependant parents

We are delighted (and relieved!) to announce the successful outcome in the case of O’Leary and Lemiere v The Minister for Justice. You may recall our previous blog posting on this case. 

This morning, Mr Justice Cooke delivered judgement approving our clients’ application to set aside the Minster for Justice’s decision to refuse to grant permission to reside for their dependant elderly parents.  He confirmed the Minister’s decision to refuse their application for permission to reside as a disproportionate decision not based on a fair and reasonable assessment on the facts of the case.

Mr Justice Cooke dismissed the State’s argument that the applicants’ case did not trigger the protections of Article 41 of the Constitution. The High Court confirmed that the applicants, as adult Irish citizens and their dependant elderly parents, did constitute a family within the meaning of Article 41 Constitution, and as such invoked the protections envisaged by that Article. He confirmed Mr Justice Hogan’s previous findings that these protections include the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified in the interests of the individual family members or necessary in the over riding public interest. 

For the purposes of assessing the rights deriving from Article 41, Mr Justice Cooke confirmed that what is important is the context of the family relationship, as opposed to how that relationship is defined. In other words, the reality of the family situation is to be assessed.

Having accepted the O’Learys and the Lemieres constituted a family within the meaning of Article 41 of the Constitution, Mr Justice Cooke proceeded to the “central issue ” of the case - whether the reasons given by the Minister to refuse the applicants permission to reside constituted a lawful exercise of the Minister’s discretion pursuant to Section 4 (7) of the Immigration Act 2004, or whether the decision was illegal in that it was unreasonable and disproportionate or inadequately explained.

On a thorough review of the submissions made in support of the application, and the Minister’s responses, Mr Justice Cooke concluded as follows;

“It is difficult to avoid the impression given by the cumulative effect of the reasons as stated, that the decision made was more concerned with finding and articulating grounds which would support a refusal rather that seeking to give an overall assessment of the merits of the application in a balances and objective manner.”

Mr Justice Cooke assessed individually the two principle grounds for refusal of the application – (1) that there is no express provision in Irish legislation for an Irish national to apply on behalf of a non EU national who is their dependant to join them in the State, and (2) that there was a lack of good faith by the applicants in their dealings with the Department.  In dismissing both grounds for refusal, Mr Justice Cooke confirmed that it is manifestly the case that the Minister has the power in his discretion to extend any permission to be in the State granted to a non national pursuant to Section 4 of the Immigration Act 2004. He also confirmed that it was the Court’s judgment that it was highly questionable that the motives attributed to the applicants in the decision were consistent with the relevant material, describing the O’Learys as open and candid in their efforts to find a way of having the grandparents to remain in Ireland.

For these reasons, Mr Justice Cooke found that the Minister’s decision must be quashed, as it was based on justifications erroneous in law.

Mr Justice Cooke then added some further comments of note in respect of the cental issue of dependency: he found that the Minister was incorrect to assess dependency only in respect of financial grounds, when dependency had been argued on a much broader context. Furthermore, he found that the Minister was incorrect to find that financial dependency did not exist, as the financial assistance went beyond what is extremely welcome but non-essential support. Mr Justice Cooke indicated that it was the judgement of the Court that the Minister had applied an unbalanced approach to isolate the financial aspect of dependency and find dependency only to be relevant in cases of outright destitution.

We believe that this case has established important new rights for Irish citizens pursuant to Article 41 of the Constitution. In particular, it has established that adult Irish citizens have rights to have their dependant and financially self sufficient (non EEA) family members reside with them in the State, and while these rights are not absolute, they are strong enough to place a weighty obligation on the State to objectively justify any infringement of those rights.

We wish to congratulate the O’Leary and Lemiere family on their successful outcome today.

Brophy Solicitors
24.02.12


Wednesday, February 22, 2012

Opening of the Irish Refugee Council Law Centre

Congratulations to the Irish Refugee Council (IRC) on the official opening of their new independent Law Centre!
The President of Ireland, Michael D Higgins, last Friday formally launched the IRC Law Centre together with the European Database on Asylum Law at a very well-attended event at the Distillery Building. The Law Centre currently employs two solicitors and two legal officers. It aims to provide early legal advice to asylum seekers in the initial stages of the asylum process. The service can be reached through an outreach clinic, contacting the centre directly, or referrals from other organisations.
In his address, President Michael D referred to the protection gap and unmet need for legal advice for asylum seekers that the Law Centre seeks to fill. The President referred to his own previous and extensive experience as a TD dealing with numerous constituents who were facing difficulties with the immigration process.
Our own experience is that asylum claims are often poorly investigated and presented at the early stages, which leads to the need for further legal challenges later. This impacts negatively both on the applicants, who often wait a very many years for a final outcome, and on the courts system, which has become overburdened with unresolved asylum claims.
We anticipate that the Law Centre will provide valuable advice and support to applicants at the earliest stages of the process and help ensure that such claims are properly presented and future delays kept to a minimum.
We wish the Centre every success!
Brophy Solicitors
19.02.12

Friday, February 17, 2012

EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.
The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.
The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.
The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.
The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 
The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.
This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.
Brophy Solicitors
17.02.12

Friday, February 3, 2012

Immigration and Human Rights Intern wanted for immediate start!

We are currently accepting applications for an intern to work with us on immigration and human rights cases.  If you have an interest in human rights and immigration and you have experience in legal researching, we would love to hear from you. The position is unpaid but we will contribute towards expenses.

Please contact Sarah McCoy on 016797930 or email your CV and a cover letter to:
Sarah.mccoy@brophysolicitors.ie

Judgment in the SZ Case

On 31st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment


Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

SHATTER ANOUNCES TWO INIATIVES: IMMIGRANT INVESTOR PROGRAMME AND START-UP ENTREPENEUR SCHEME

The Minister for Justice, Equality & Defence, Mr. Alan Shatter, TD, recently the introduction of two new immigration initiatives aimed at facilitating (non EEA) migrant entrepreneurs and investors who, in return for permission to reside in the State, are prepared to invest here for the purpose of saving or creating jobs.

The Immigrant Investor Programme:
The sort of investments envisaged will include a specially created low interest Government Bond, capital investment in an Irish business, endowments in the cultural, sporting educational or health areas will also be considered.The level and duration of financial commitment required from the Investor will depend on the nature of the investment but will generally range from €400,000 for endowment-related investments to €2 million in the new Immigrant Investor low-interest bearing Government Bond to be devised by NTMA in conjunction with the Immigration authorities. The level of investment in business entities where jobs are being created or saved will generally be €1 million and the Department will be guided by and reliant upon the advice and expertise of IDA Ireland and Enterprise Ireland in assessing individual proposals.

Approved participants in the Investor Programmes and their immediate family members will be allowed enter the State on multi-entry visas and to remain here for a defined period. Ordinarily this will be for a period of 5 years - reviewable after 2 years.

The Start-up Entrepreneur Programme:
The Start-up Entrepreneur Programme provides that migrants with a good business idea in the innovation economy and funding of €70k can be given residency in this State for the purposes of developing their business (this compares with a previous minimum funding requirement of €300k). No initial job creation targets will be set as it is recognised that such businesses can take some time to get off the ground. Projects will be evaluated by an Evaluation Committee with State Agencies playing a key role in "picking winners" or those who demonstrate a good idea or the potential to be a winner.The business proposal must have a strong innovation component.The applicant must not be a drain on public funds.All applications for both programmes will be considered by an Evaluation Committee comprised of representatives of IDA Ireland, Enterprise Ireland, the following Government Departments; Finance; Jobs, Enterprise and Innovation; Foreign Affairs and Trade; Health; other Government Departments as the need arises and the Minister’s own Department of Justice. Applicants must be of good character and be able to support themselves while in Ireland. Applicants will be required to attest to their bona fides on affidavit sworn here.

An Annual Report will be published on the operation of the Programmes and they will also be reviewed to ensure that they continue to meet their objectives. The Programmes offer no special access to Irish citizenship. Beneficiaries will be subject to the same rules as other migrants in that regard – i.e. generally residence in the State for at least 5 years.

Next Steps

The Minister indicated that he hoped to have the new schemes formally launched by mid March when the detailed rules governing the Programmes which are being worked upon by officials in the Department of Justice will be published. He said no new legislation is required as the pre-existing legislative powers of Ministerial discretion are sufficient to enable the programmes to operate in a flexible manner.

Irene Carney
01.02.12

DETERMINATION OF ZAMBRANO CASES TO DATE

Pamela Duncan in the Irish Times reported last week that more than 850 non-EU parents of Irish-citizen children have been granted residency in Ireland since the ECJ issued its ruling in the Zambrano decision which created rights of residency for parents of Member State citizen children. Apparently, six parents of Irish citizen children who were previously deported have been granted permission to re-enter the State. 

1000 cases have been processed to date by the Minister who said that the decisions were taken “in the best interests of the welfare of eligible minor Irish citizen children”.

The Irish Times reports that 700 cases remain outstanding; ‘In approximately half of those cases the department has requested further documentation or clarification from the applicants before their cases can be progressed. This number does not include other non-EU parents of Irish-born children who had an existing right of residency, for example where people were lawfully resident on a worker, spouse or student visa.’ 

We have a number of outstanding applications as well as a number of applications which we have requested a review following a negative decision. One such decision was reached upon the Minister’s determination that the father of an Irish citizen child who resides with his child in the State, was not seen to have shown evidence of a ‘relationship of dependency’ between both he and his child. Other applications are outstanding whereby the applicant parents reside outside of the State with their Irish citizen child(ren). We submit that a refusal of such applications is in turn a refusal to permit entry to the State by an Irish citizen. We are however pleased that one application concerning the father of an Irish citizen child residing outside of the State was granted after a nine month delay in determining the visa application. 

Various complications arise in the submission and in the determination of Zambrano applications. It seems to us that the very reliance on the word ‘Zambrano’ when applying for residency/Stamp 4 on behalf of a client triggers a delay on their application for residency where that application might also be based on other factors for example a relationship with an Irish citizen. We have also encountered situations whereby applications to renew a permission granted under leave to remain are delayed whenever submissions are made in respect of an Irish citizen child. Therefore, otherwise uncomplicated, straightforward applications for residency which would normally be considered rather promptly are faced with delays and requests for further and specific documentation. We note that in one of our cases, an applicant had been granted a visa to join his Irish partner in the State without any difficulty. He is also the father of his partner’s child, an Irish citizen. As a result, he was permitted to register under Stamp 4 when reporting to the GNIB, which in our experience has been standard practice, but was asked to make an application to the Minister for residency based on his parentage of an Irish citizen child. This application is still pending, the applicant has not been permitted to work, even for a temporary period and has been forced to return to his home country much to the dismay of his Irish partner and mother of his child. 

In another situation, two applicants from the same country, with the same background and immigration history had both submitted applications for leave to remain on the very same date, 3years ago. We were notified by the Repatriation Unit that both applications were due to be considered. One of the applicants had in the meantime become father to an Irish citizen child. His application for leave to remain was put on hold. His friend’s application was determined and was successful. 

We will keep you informed as matters develop and welcome your thoughts and comments on these issues. 

Sarah McCoy
sarah@brophysolicitors.ie
01.02.12