Thursday, September 20, 2012

The Mystery of the "Stamp 0"



We are confused and concerned about the application of the new residency “Stamp 0” and in particular, the recent grants of this stamp to two clients who are dependent family members. On reading the guidance, it appears that a grant of stamp 0 to such dependent family members is inappropriate and misguided.

According to INIS, the new stamp was created in December 2011 as our blog post reported. It is described as a “low level immigration permission” that permits individuals to remain in the State only for a “specific, temporary and limited purpose”. The guidance explains that the holder cannot work or engage in any business or trade without specific permission, they must be of independent means or fully supported by a sponsor in the State, and finally the holder is not entitled to receive any State benefits and must have private medical insurance.

The guidance goes on to give examples of the types of people who may be eligible for this mystery stamp. They include a “service provider” sent to Ireland by an overseas company to carry out a particular task. Which is confusing, because presumably such a service provider would need permission to work and is therefore not suited to a stamp that specifically stipulates a prohibition on employment. And the stamp is also envisaged for “visiting academics”, who, we also guess are working too. Or are they just on their holidays?

And what is the application process for this mystery stamp? According to INIS, “there will be no specific application process for a stamp 0. “  And what happens at the end of the stamp? It is stated simply that “it is not intended to be a pathway to any more permanent form of migration.”

The guidance is unclear and confusing and this is of concern to us.

We have recently had two clients issued with stamp 0. Both are elderly persons who are wholly dependent both financially and emotionally on their Irish citizen family members who are permanently resident in the State. Such dependency is increasing with age and is likely to continue indefinitely. There is no intention or prospect of our clients returning to their countries of origin. They intend to reside in the State indefinitely, financially self-sufficient and dependent on their families. This much has been categorically stated to the Minister.

We are therefore unclear and concerned as to why a stamp 0 has been issued in each case. It appears, from the guidance, that such a stamp is entirely inappropriate. The clients have categorically stated that they are not here for a temporary or limited purpose. They are here as dependent family members and have an expectation that they will be permitted to settle in the State by applying for some more permanent form of residency, for example citizenship. Yet the guidance on the stamp 0 specifically precludes using the stamp as a pathway to a more permanent form of residency. What, therefore, are the clients expected to do at the end of their stamp 0?

Our expectation for these clients was that they would be issued with a Stamp 3 by the Minister. They would therefore later be in a position to apply for a more permanent form of residency, for example citizenship, relying on their accrual of the appropriate period of reckonable residency on a Stamp 3.

We note that the restrictions that apply to a holder of a stamp 0 tally closely with those of Stamp 3. In fact, there appears to be little difference between the two stamps except for the emphasis in the stamp 0 guidance that it permits only temporary residence for a specific and limited purpose and is not intended to lead to any more permanent forms of residency.  It is unclear therefore whether a period on a stamp 0 will be classified as a period of reckonable residency that would ordinarily accrue towards a more permanent form of residency, such as citizenship. It is this particular aspect of stamp 0 that is causing us unease.

We have therefore written to the Minister to seek clarification on the application of stamp 0. We will also be making a Freedom of Information request in order to obtain the full internal guidelines for deciding officers on the circumstances in which stamp 0 is to be applied. We will keep you updated and ask you to contact us should you have any queries regarding the mystery stamp 0.

Brophy Solicitors
18.09.12 

Tuesday, September 18, 2012

Asylum children in 'extreme poverty'



Brophy Solicitors would like to take this opportunity to commend the IRC (Irish Refugee Council) on their report into the living conditions of young adults and children in direct provision accommodation within the State.

The report was published today and highlights issues which arise with direct accommodation for asylum seekers. The report found that there were numerous reports of malnutrition amongst young women and expectant mothers.

Within its report the IRC highlighted one particular case from a Mayo accommodation center that once a child reached six months, no more baby or toddler foods would be provided and the children would only be supplied with food “consistent with the rest of the residents”.

Brophy Solicitors
18.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0918/breaking39.html

Monday, September 17, 2012

Tamils to be deported despite clear torture evidence


An article in the UK Guardian from Friday, 14th September, reports that the UK intends to move forward with a mass deportation of Tamils to Sri Lanka next week. Many of them arrived in the State to claim asylum, describing accounts of torture and ill-treatment.

Human rights organizations Freedom from Torture and Human Rights Watch both have corroborated those statements, arguing that “the government has severely underestimated this possibility [of torture] when it comes to returned Tamils, many of whom are routinely arrested and questioned about links with the Liberation Tigers of Tamil Eelam (LTTE) and activities in the UK, with torture often playing a part.” The UK Guardian has previously reported about aTamil man who had been refused asylum in the UK and tortured upon his return to Sri Lanka. Despite this, the UK Border Agency refuses to discuss the flights that are scheduled to deport the Tamils until after they have taken off.

Freedom from Torture notes, “This rate of referrals involving torture following return from the UK to a particular country is, to the best of our knowledge, unprecedented since Freedom from Torture was founded in 1985.”

A UK Border Spokesman said, “The UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country. We only undertake returns to Sri Lanka when we are satisfied that the individual has no international protection needs. The European Court of Human Rights has ruled that not all Tamil asylum seekers require protection.”

The head of Human Rights Watch, David Mepham, has said that HRW has documented a series of cases where failed asylum seekers from Tamil have faced torture or serious threats of torture upon their return to Sri Lanka. He recommended, “Given the very serious risk of torture facing many Tamils returned from this country, the UK should immediately impose a moratorium on these returns, pending a thorough review of UK policy in this area and the introduction of new assessment guidelines.”

At this point, it appears that the flights will go ahead as scheduled, but hopefully in the future, the UK Border Agency will more carefully review each case to prevent Tamils being returned to a situation where they would face torture or inhuman or degrading treatment or punishment.

Brophy Solicitors
17.09.12


Friday, September 14, 2012

Shatter defers closure of Galway asylum-seeker centre


We recently reported about the order to close down an asylum-seeker centre in Galway, entitled the Lisbrook Centre (incorrectly referenced in the article as the Lisburn Centre). The Minister for Justice Alan Shatter has deferred this closing order so that he may review the motivations, reports the Irish Times in an article from Thursday, 13th September.

In earlier articles about the issue, authorities have reported that the centre was ordered to be closed because of a falling number of asylum seekers requiring accommodation in the State, and budgets were tight. However, that does not change the fact that there are still hundreds of asylum seekers depending on direct accommodation facilities such as the Lisbrook Centre while they wait for the determination of their application. The article reports that some have waited for up to four years on the determination of their application, and many have moved up to nine times as they await a decision.

School has just started and many young asylum seekers have begun studying at a local school. They have just settled in and hope to integrate, and the Labour Galway West TD Derek Nolan cited the closure as a “terrible way to treat people.”

Local residents who support the maintenance of the Lisbrook Centre have heavily criticized the closure decision, and they intend to move forward with the planned rally in Galway on Saturday.

Hopefully the Minister reviews the decision to close the centre and quashes it, allowing many refugees who have already suffered unimaginable trials a renewed sense of welcome and security in the State.

14.09.12

Wednesday, September 12, 2012

Bernardo’s chief: in the best interests of the children


An article from Tuesday, 11th September in the UK Guardian described the efforts of Anne Marie Carrie, the chief of Barnardo’s. It is an accommodation centre for families who have been refused asylum and are waiting to be deported back to their home countries. She says that her organization comes under fire often, from anti child detention organizations, but she claims that keeping the children with their families, even if it is in a detention centre, is far better than the alternative, which is to split up the families as they wait and send the children to foster homes to await deportation.

She also acts as a crucial voice for these families, as their rights are commonly ignored. She is unafraid to call the necessary authorities to ensure that the rights of the families are looked after, even though the State has denied them official protection. “If not us, then who?” she commonly asks.

Barnardo’s is a service at Cedars, the “pre-departure accommodation centre” that provides accommodation for failed asylum seekers. At the onset, Barnardo’s established a set of “red lines” that could not be crossed regarding the rights of refugees. Once crossed, Carrie took action. She raises concerns every time she believes the rights of refugees have been breached, and her voice is a valuable one to these vulnerable families.

Brophy Solicitors
12.09.12


Picking on Foreign Students


The Economist this week highlights the picking on foreign students in the UK as a case of xenophobic populism ahead of the recent cabinet reshuffle. Immigrants once again seem to be the political football and the ones to blame. We hope the same narrow approach is not pursued here for example in the review of the Student Work Concession (see below) and that we continue to recognise the value of having foreign students study and work in Ireland.

The UK Border Agency last month decided to withdraw the London Metropolitan University’s licence to sponsor students from outside the European Union. This means that the University is removed from the register of licensed sponsors and students from outside the European Union are no longer allowed to study at the university.

The University has since issued a legal challenge to the withdrawal, refuting claims of systematic failings and stating that they have conducted stringent checks on their students in order to meet with the published requirements. They also point out that there have been at least 14 substantial changes to UKBA's requirements in relation to their students in the last three years.

The impact of UKBA’s revocation is stark:  up to 2,600 continuing international students are affected and may face deportation if they cannot find an alternative sponsor by 1 December 2012.

The dispute between UKBA and London Metropolitan can be seen as part of a wider tussle between the UKBA and international students as the UK government seeks to meet its election pledge of reducing immigration to the “tens of thousands” during their term in office. The most recent figure on net inflow migration into the UK stood at 216,000, so there is some way to go.

The only way the UK can realistically reduce the number so drastically is by imposing sweeping  restrictions on foreign workers and students who are the very immigrants that they need to hold on to. They make a valuable financial contribution to the UK economy and are most likely to make a beneficial impact; they keep several higher education institutions afloat and help make the UK a global player in third level education.

The Economist cites a government report that estimates earnings from foreign students to be around £7 billion a year and that this could double by 2025. The revocation of the license held by London Metropolitan could result in as much as a £30 million annual loss to the institution alone.

The UK approach, as the Economist argues, is a nasty piece of populism driven for the most part by political priorities.

Recent changes in our own immigration system have seen a tightening up of the student visa regime (see our previous  blog posts on this issue). According to INIS, in 2011 the number of non-EEA national students registered to study in the State was approximately 32,500.Broken down by education sector, 37% of students were pursuing Higher Education (Degree Programme) study, 29% were taking language courses, 23 % further education (non Degree) courses and 11% other (e.g. accountancy, secondary school).There is reported to be a decrease of around 8% in the numbers of international students in 2012.

The Department of Justice have posted their intention to review the Student Work Concession – this permits full time non-EEA students to work 20 hours per week during term time and 40 hours per week outside that. While INIS states there are no immediate plans to change this, they do not that the current economic climate necessitates further analysis of this concession.

We would guard against any change to the current concession and any further tightening of the student visa regime. Our own experience is that the work concession provides an essential means for students to meet the significant costs of pursuing studies in the State as a non-EEA student and to meet basic costs of supporting themselves through their course of study. These students work hard, they pay their taxes, they have valid permission to remain in the State. Any review must therefore be properly informed by the many benefits of attracting foreign students to Ireland and not any political populism borrowed from the UK.

Brophy Solicitors

12.09.12

Tuesday, September 11, 2012

Closure of asylum seeker centre criticised


An article in the Irish Times from Monday, 10th September, discussed the closure of the Lisbrook centre, formerly the Ibis Hotel, which accommodates several hundred asylum seekers and their families. These families are now set to be relocated to other refugee accommodation centres around Ireland, but the individual relocation sites have yet to be determined.

This closure puts an already vulnerable population at additional risk. Refugees who were housed at the Lisbrook centre have endured many trials in their journey to Ireland, and they settled at the centre with the hopes that they could begin anew in Ireland. Now, as the families face uprooting, parents are worried about their children having to switch schools, communities face the loss of neighbours, and weary refugees have to face yet another move. The closure happening in mid-September shows additional lack of consideration for school children who may be already settled into a new school.

Many of the refugees were too frightened to have their names quoted in the newspaper, but they anonymously reported “serious trauma,” especially since some of them have already spent time in eight different provision centres. They were hoping to finally settle down in Lisbrook, only to find that they had to relocate once again.

The community in Galway is outraged as well. Labour TD for Galway West, Derek Nolan, said it’s a “terrible way to treat people,” and he promised to contact the Department of Justice to discover why the centre has been closed. The information provided to the refugees about their future provisions is frustratingly vague so many families are still left questioning what the future holds for them. The criticism that has risen as a result of this closure should demonstrate to the Department of Justice, and the Reception and Integration Agency, the organization responsible for direct provision accommodation, that a more stable living situation is crucial for this population of asylum seekers.

An article from 11th September describes how an anti-racist group has appealed to Mr Alan Shatter, Minister for Justice, to review and hopefully quash the decision to close the centre. The Department have stated that “Lisbrook is closing as part of an ‘ongoing consolidation’ of accommodation for asylum seekers across the State.” However, an organization against Galway called “Residents Against Racism” has appealed to the Minister to review the decision to close the centre.

Brophy Solicitors
11.09.12




Thursday, September 6, 2012

Referral to Court of Justice concerning the Right of Residence for the Non EEA parent of EU citizen child in Education in a Member State





Case  Study : Ms Olaitan Ajoke Alarape (the First Appellant) and Olukayode Azeez Tijani (the Second Appellant) –vs— The Secretary of State for the Home Department (respondent) and Aire Centre (third-party intervener)

We are waiting with interest to see the Court of Justice’s response from the UK referral in the above case.  The outcome could be of great assistance in clarifying and expanding upon the rights of residence established in the seminal cases of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08.

In particular, the right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation. It is currently uncertain whether such a right of residence does or does not count towards the five years required for permanent residence. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.”

The facts of the Alarape case are as follows;

The Appellants were mother and son, and Nigerian nationals. They arrived in the UK illegally in 2001. In 2003, the first appellant married Mr. Salama, a French national, so the first and second appellants were given permission to reside until 2009. The couple then divorced in 2010.  Subsequently, the appellants applied for permission to reside based on the fact that Mr. Salama was exercising his EU Treaty Rights by working for 5 years. 

The second appellant is a student who intends to commence a course in PhD studies in Edinburgh.

The First Tier Tribunal (FTT) found that Mr Salama was not exercising his EU Treaty Rights because he had only produce evidence of employment from 2004-2006. The appellants therefore received a negative decision but they received permission to appeal

The findings made by the Upper Tribunal were as follows;

-          Mr. Salama hadn’t been exercising EU Treaty Rights, so there’s no error in law there. They don’t qualify for any of the protections of non-EU family members in the event of a divorce because he hadn’t been working.

-          Even though the son is over 21 and isn’t the child, but the step-child of Mr. Salama, his rights are recognized under Article 12 to have his education.

-          The FTT is unable to determine whether or not the first appellant is his “primary carer,” because there is no clear definition of primary carer. They enjoy a close relationship and he is financially dependent on his mother, but he lives in another city, is now 25, is healthy and able-bodied, and has entered into the labour market on his own before.

Queries of law referred to the Court of Justice:

-          For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

-          In order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

-          In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

-          In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

-          Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence”) and being issued with a residence card under Article 19 of the same Directive?

Brophy Solicitors
06.09.12


Wednesday, September 5, 2012

Award to migrant quashed over illegal status


In 2002, Mohammad Younis arrived in the state from Pakistan to work as a chef in the restaurant Poppadom in Dublin, owned by his cousin, Amjad Hussein. Since then, Mr. Younis alleged that he has been grossly mistreated, working seven days a week with no holidays to earn “pocket money,” paid in cash. He has been undocumented since his original work permit expired in 2003, and he claims that Mr. Hussein has retained his Pakistani passport. In 2011, the Labour Court found that he had been exploited, and awarded him €92,000, including over €86,000 in back pay since September 2002. Mr. Hussein appealed this decision, stating that he wasn’t properly legally represented in the original trial, Mr. Younis had made false claims in the original trial and that the counsel had just accepted whatever story they were told without investigating the veracity. He also claimed that Mr. Younis was well aware of his undocumented status, and had the opportunity to return to Pakistan at any point.

Yesterday, the High Court ruled that the award must be quashed because of Mr. Younis’s illegal status in the State.  Mr. Justice Gerard Hogan, who delivered the opinion, acknowledged that Mr. Younis had been “the victim of the most appalling exploitation by his employer,” but that “While this conclusion seems to me to be inescapable on the application of established legal principles, it is not a result which yields much satisfaction.” In 2003, the Oireachtas ruled that “a contract of employment involving a non-national was substantively illegal in the absence of a permit.” Mr. Justice Hogan felt obliged, therefore, to quash the award, since Mr. Younis had been working here illegally, but he sent a copy of his judgment over to the  “Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Employment” for review, since the judge believes that the original policy of 2003 was not intended to be used as a an excuse to exploit illegal workers.

There are several articles from the Irish times reporting on this decision from the High Court, and they discuss the potentially devastating effect of this ruling on illegal workers in the State. Mr. Justice Hogan stated, “If, however, that legislation [the policy of 2003] is applied in a rigorous and unyielding manner it might have serious consequences for vulnerable migrants who found themselves exploited by unscrupulous employers.”

Brophy Solicitors
05.09.12



Monday, September 3, 2012

Academic refugees(UK): ‘My hope is to contribute to this country—if I’m given the opportunity.’


In the UK Guardian from August 31, a refugee from Algeria gives a first-person account of her journey to England. She details her early educational success in Algeria, and how she gained the equivalent of a Masters degree, but the political activism of her country resulted in her apartment being ransacked, and her family receiving death threats. She was forced to leave the country in 2003, following her husband, who she described as “a journalist and vocal opponent of the rise of fundamentalism,” and who had left in 2003.
She and her family were relocated to Swansea in Wales, in a disadvantaged area. They suffered through culture shock, racist attacks, and hostilities from their neighbours, but  she said they were forced to remain there with their small children until 2007. She reports that she and her husband have resumed their work and research as best as possible, and her success has inspired news stories, but she says that she thinks often “about the irony of having left Algeria and fled persecution only to have to suffer racism.” She says that “my hope is to contribute to this county – if I'm given the opportunity.”

Brophy Solicitors
03.09.12