Friday, March 22, 2013

Lack of Transparent Policy in the Irish Immigration System

Ireland's Immigration rules are mostly comprised of policy that has never come before Dail Eireann. In fact, many policies applied in practice are not even published in policy documents, nor are they made available to the public, and often, an applicant cannot possibly know what policy, if any, will be applied to their individual application. Instead, we have what could be perceived to be a system of ‘hidden remedies’, resulting in widely inconsistent decision making. 

Working in immigration for many years, we see wholly inconsistent decisions being made in respect of all aspects of immigration in Ireland.  We are aware of cases where some children of stamp 1 A holders have received Irish passports, and others have not, based on contradictory findings as to whether stamp 1 is reckonable or not. This week, we have met students who entered the State in 2004 and have been excluded from the 2004 Student Probationary Scheme, because the classes commenced in 2005, while other students on the same course were accepted on to the scheme. 

The lack of clear and transparent policy in respect to visa applications for family members of Irish citizens is of particular concern. Decisions are made in respect of applicant’s fundamental rights, on unclear grounds such as “bona-fides” of a relationship, or “risk of financial burden”. No guidance is provided to the applicant prior to the application on what thresholds they must meet. It certainly appears to us that these thresholds vary hugely between the different Embassies, and the different decision makers. For example, we have obtained a number of positive decisions on Long Stay visa applications for dependant family members of Irish citizens, yet others have been refused on the basis of a stated “policy” not to grant such applications. We have a number of cases in the High Court challenging the refusals for Long Stay visas for the spouses of Irish citizens,  when we know of other cases in the same factual circumstances that have been granted. 

The inconsistent process and criteria for determining naturalisation applications has been well publicized in recent years, and is a major issue for concern for migrant communities. The process is at the discretion of the Minister for Justice, Equality and Defence (the Minister); an opaque process, marked by delay and applications are often refused for minor or trivial reasons. The only available ‘policy’ is that on the INIS website, however this is generally an explanation of the application process, not a statement of the policies applied. Moreover, applications are frequently refused provided no reasoning as to why this is the case.

As lamented by Longmore LJ (DP(United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365), litigants and judges dealing with immigration law feel themselves in an absolute whirlwind due to the speed with which the law practice and policy are changing in this area. This statement is true also to the position in Ireland, where immigration is definitely a permanent and positive reality.

The relevant question to be asked is whether a decision made by the Minister for Justice in respect of a person’s fundamental right (including family life) is lawful, if it is based on a policy that is unknown to the applicant at the time of making the decision? Or if the applicant does not know what the policy is even at the time of decision? Or if the decision is based on a policy that has been applied inconsistently and unfairly? 

These questions were at the heart of the appeal in the House of Lords decision in the UK, the case of R (on the application of Alvi) v Secretary of State for the Home Department) [2012] UKCS 33 (SC), which concerned what could be considered as constituting a rule laid down by the Secretary of State as to the practice to be followed in the administration of granting leaving to remain. Mr Alvi, a national of Pakistan was refused such permission as applied for under the Tier 2 General Migrant Gateway, on the basis that the Secretary of State for the Home Department (the Secretary) was not satisfied Mr Alvi’s earnings were those expected of work at the required skill level, consequently failing to fulfil the requirements of immigration rules for this category.

One of the arguments submitted was that the list of skilled occupations the Secretary was relying on, were not part of the Immigration rules as the ‘codes of practice document’ had not been laid before the Parliament as required by s3(2) of the 1971 Act. Consequently, it was claimed that reliance on this ground for refusal was unlawful.

Lord Dyson considered ‘all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain…’ are ‘immigration rules’ and must be laid before Parliament in accordance with the 1971 act’.

In agreement with this, the Court was unanimous in holding that where a policy set down a mandatory requirement which would lead to a refusal of an application for status under Immigration rules, the Parliamentary oversight procedure at the 1971 Act must be compiled with. As the criteria the Secretary had relied on had not been laid before Parliament as required it was held the Secretary’s actions were unlawful and so the appeal was dismissed.

This decision was approved the more recent case of R (on the application of Munir and another) v Secretary of State for the Home Department [2012] UKSC 32, where it was held that a policy is something distinct from a rule as a policy is not rigid and must be applied to an individual’s particular circumstances. The outcome of these cases essentially confirms the core reasoning of Sedley LJ in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, where he held a criterion applied by the Secretary as necessary or sufficient for the success or failure of an immigration application, will only be valid where the criterion was subject to the Parliamentary oversight provisions of the 1971 Act.

The need for transparency and clarity in relation to the Irish immigration administrative rules and policies relied on by the decision makers is more important now than ever. The Minister, in outlining his key priorities for 2012 declared his intentions to publish the Immigration, Residence and Protection Act, with the hope of enactment in 2013. It is claimed that the Bill will radically reform and modernise the approach taken to the determination of asylum applications for permission to remain in the State. The impending introduction of this new legislation provides the government with a chance to achieve and fulfil its aim of establishing a fair, transparent and strategic immigration system. The Government needs to address the fundamental problems with the current non transparent and inconsistent process in Ireland. These changes are possible to be achieved, and not only will they ensure Irish policy is in line with international practice but moreover could lead to very positive changes for migrants and Irish society in the long term.


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