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.