Monday, June 23, 2014

SUMMARY OF KAREN BERKELEY’S SPEECH FOR THE CONFERENCE 'BEYOND THE SINGLE PROCEDURE: REFORMING IRELAND'S PROTECTION SYSTEM' HELD AT UNIVERSITY COLLEGE DUBLIN’S SUTHERLAND SCHOOL OF LAW TO MARK WORLD REFUGEE DAY 2014.

Mr Uustalu was granted the first declaration of statelessness in Ireland by the Minister for Justice in March 2014. Mr Uustalu is from a town located in Estonia, which, at the time of his birth, was in the territory of the USSR. In 1991, Estonia became an independent state and Mr Uustalu was issued an “Alien’s Passport”, identifying his citizenship as undefined. He was entitled to apply for Estonian citizenship, however, this entailed the applicant to pass an Estonian language exam, which Mr Uustalu and his parents, as Russian speakers, would have been unable to pass. 

Mr Uustalu first came to Ireland in 2002 and unable to acquire lawful residence status as a stateless person because of the lack of such a procedure. Unable to leave the state since then, because his “alien’s passport” expired, Mr Uustalu made an application for a stateless travel document last year. This failed because he could not provide a declaration from the Minister confirming his stateless status. Subsequently, there was an application for this declaration made under the 1954 Convention, but this application was unanswered. This led to high court proceedings seeking a declaration that the failure by the State to have in place a procedure by which Mr Uustalu could apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constituted a breach of his rights and the State’s obligations under the 1954 Convention relating to the Status of Stateless Persons. A few days before the hearing, the proceedings were settled and Mr Uustalu was issued with the first declaration of Statelessness in Ireland.

The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons. This is the principle international instrument to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms. Article 1 of this convention defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition describes a particular type of statelessness, which is characterized by the formal lack of nationality, this is known as “de jure statelessness”. There are also persons who are “de facto stateless”, that is, people who formally hold a nationality but experience the associated problems with statelessness because that nationality is ineffective. The Convention also distinguishes between non-refugee stateless persons and a stateless refugee. 

A declaration of statelessness is important because this recognition by a State provides a person with a legal status and basic entitlements, including a right to work and travel, among others. If a person is stateless without formal recognition, they will not have any legal protection or automatic rights to healthcare, education and employment, which puts them at risk of exploitation. 
 
The assessment of stateless status is complicated because of an overlap between statelessness and refugee status, and also the sometimes unclear distinction between de jour statelessness and de facto statelessness. The Convention does not provide for specific procedures for the assessment of statelessness.

For a fair and efficient status determination procedure, there must be a clear and transparent legal framework, access to legal advice and information and an effective appeal system. Decisions must be made in a timely manner and there should be a provision of accommodation and welfare through the determination process. A stateless person who also has grounds for asylum is not eligible for protection under the 1954 Convention , thus, the application for asylum must be considered first.

Ireland has failed to meets its obligations under the 1954 Convention, as there exists no formal procedure for determination in stateless. The few applications that have been made for recognition of stateless status have been made as submissions included in an asylum application, submissions included in an application for humanitarian leave to remain and sometimes as submissions at the deportation stage when it emerges that an applicant has nowhere to be deported to. Though some persons have has their stateless status recognized by ORAC and the Refugee Appeal Tribunal, the Minister has not afforded them the declaration to recognize their stateless status. Therefore, unless the stateless person can fit their case successfully in the asylum application process, or acquire legal status through other means, they are left in a legal limbo. 

The Irish State has, however, has implemented some of the derivative rights for stateless persons found in the Convention, such as application procedures for stateless travel documents and procedures for naturalisation of stateless persons. Yet, these are meaningless unless the applicant can be formally recognised by the State as stateless.

With the proposed introduction of the single procedure to the asylum application procedure, it is necessary to include stateless persons in this discussion. It is crucial that a durable solution for stateless people is put in place now. If there are to be further long delays in the creation of the single protection procedure, than a temporary procedure must be implemented for Stateless persons imminently. It is now imperative to address the failings of the Irish State to date to fulfill the obligations under international law by setting up a legal framework in which stateless persons can access a declaration of their status and the rights which accrue from this. 

I wish Nasc, the Immigrant Council of Ireland and the UNHCR the best of luck in their current campaign to ensure that stateless persons do not continue to be ignored in this way.

Karen Berkeley
Brophy Solicitors
 

SPOTLIGHT ON IRELAND’S FLAWED ASYLUM AND PROTECTION PROCEDURES AT UCD CONFERENCE FOR WORLD REFUGEE DAY

On Friday the 20th June last, Karen Berkeley from our offices presented a speech on statelessness for the conference 'Beyond the Single Procedure: Reforming Ireland's Protection System' held at University College Dublin’s Sutherland School of Law to mark World Refugee Day. Karen’s topic was Statelessness: Ireland’s obligations under the 1954 Convention relating to the status of Stateless persons.

Karen discussed the recent successful case of her client Mr Roman Uustalu who was granted the first declaration of stateless status in Ireland. Karen highlighted the urgent need for a comprehensive legal framework to be implemented to fulfil Ireland’s obligations under the 1954 Convention. To see a summary of Karen’s speech, see the attached link: http://brophysolicitorsimmigration.blogspot.ie/2014/06/summary-of-karen-berkeleys-speech-for.html.

Other important issues discussed were the asylum appeals backlog and the proposed single procedure reform to the asylum system.

It was noted that the delays in the high court for hearing appeals by asylum seekers whose refugee status applications have been rejected is one of the main reasons that people spend so long in direct provision centres. There are over 1,000 asylum cases waiting to be heard in the High Court. Barry Magee, the chairman of the Refugee Appeals Tribunal, said that “It would take four years and seven months to get through the current cases on the list, without any new ones being added.”
He added that he would be willing to seek alternatives mechanisms to determine those cases. Sophie Magennis, the head of office with UNHCR in Ireland, delivered the keynote speech and offered alternative dispute resolution as a mechanism which could be considered as a means to reduce the backlog in the High Court.

Patricia Brazil, a barrister and lecturer in law at Trinity College Dublin, spoke about the history of the protection system and judicial review. She noted that it was surprising that Ireland’s figures for judicial review of asylum cases were not higher, given the fragmentation of the asylum system. 

Ms Magennis further noted that UNHCR welcome the proposed single procedure. She said that additional measures could also be introduced, such as the easing of restrictions of the direct provision system and greater access to integration supports for applicants.
 

Karen Berkeley
Brophy Solicitors

Wednesday, June 18, 2014

VISA APPLICATIONS FOR EU CITIZEN AND THEIR FAMILY MEMBERS EXPLAINED

The EU Directive governing the family reunification for EU citizens exercising their Free Movement Rights is Directive 2004/38/EC. This is separate from national law. On INIS, www.inis.gov.ie, there is a choice to make an application of being a family member of an EU citizen or otherwise under national law. EU citizens and their family members have a right under residence, under Article 6 of the Directive, for up to three months in the State without any conditions.

The form of visa to be issued is a single entry C visa. To be granted a visa under the Directive, the applicant must prove that they are either a i) a qualifying family member or ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

Qualifying Family Members include:

i) the spouse of the EU citizen
ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

Permitted Family Members include:
i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained. 

ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

The applicant must prove:

i) that there is an EU citizen from whom they can derive rights from under the Directive;

ii) the existence of the required relationship as either a qualifying or permitted family member;

iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

The proofs that are required are:

i) proof of identity (for example, valid passports for the applicant and the EU citizen);
 
ii) proof of the required relationship (e.g. a birth certificate or a marriage certificate);

iii) for a permitted family member, proof of dependency or membership of the household;

iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland at the time of arrival of the applicant family member (proof of travel to Ireland, for example).

The INIS website lists types of supporting documentary evidence. There is no need for additional proofs, such as evidence of employment or letter of invitation. 

Refusals can be made on the following grounds:

i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Member states are not obliged to recognise a polygamous marriage where this is not allowed in their national law, as is the case for Ireland, thus this time of marriage cannot be relied upon as proof of the family relationship. Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship. However, marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into. 

If refused, the applicant may, in addition to, or as an alternative to, exercising their right of appeal, submit a new visa application for consideration. Any such application will be considered separately from their application and will not affect their right to appeal.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications. 

If the visa is approved and the applicant wishes to reside in Ireland for more than three months, then they should make an application (when in the State) for a residence card (GNIB card) of a family member of an EU citizen to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

Ciara Dowd 

THE NAWAZ CASE AND THE NEED FOR THE "SINGLE PROCEDURE" IN PROTECTION APPLICATIONS

In the recent case of Nawaz, the Court of Justice of the European Union criticised the Irish asylum application procedure for lack of basic fairness and stated that it should be possible to submit the applications for refugee status and subsidiary protection status at the same time, in other words, that there should be a single procedure for asylum applications.

There are many problems with the current procedure in Ireland, which is that applicants seeking subsidiary protection status must apply first for, and be refused, refugee status. Ireland is the only country in the EU which this two stage application. Indeed, Ireland has among the lowest grant rates in the EU for subsidiary protection status, granting only 30 last year. Subsidiary protection applies to third country nationals who would be at risk of being killed, tortured or at risk of human rights abuses if they were deported, but who do not fit the narrower criteria of refugee status.

Applications for refugee status are processed by the Office of the Refugee Applications Commissioner (ORAC). If ORAC does not recommend granting refugee status, the applicant may appeal to the Refugee Appeals Tribunal, or may wait for a deportation order. It is only at the point of the deportation order that an application for subsidiary protection can be made.

The separation of these applications over different stages is a problem mainly because it causes asylum seekers, who may be clearly applicable to subsidiary protection, to go through the process of applying to refugee status. This means that they may spend unnecessarily long periods of time living in Direct Provision centres, which have been internationally condemned for their poor conditions. Asylum seekers spend 45 months, on average, in Direct Provision centres, while 845 people have spent more than 6 years in the system. This has significant personal consequences on the asylum seeker who have suffered severe traumas in their country of origin and also places a burden on the state. In 2012, the cost of the Direct Provision centres was €62.3 million.

The single procedure is being advocated as the main solution to replace the problematic system currently in Ireland. The single procedure would end the two stage process of applying for subsidiary protection. A single procedure for asylum applications would lead to faster processing, reducing the length of time individuals and families spend in Direct Provision centres and provide comprehensive access to all forms of international protection. It is possible that the single procedure would make decision-making more complicated, in that, applications for refugee status and subsidiary protection status would have to be considered simultaneously. Complications arising from this may include errors in decision making which may in turn lead to deportation of people who are genuinely at risk. Thus, it is crucial that the new single procedure system be well resourced and managed. 

The single procedure was first introduced in Ireland in the Immigration Residence and Protection Bill 2008. However, this Bill has been repeatedly delayed. Therefore, especially with the recent ruling of Nawaz, it is necessary that the government legislate immediately for a single procedure for asylum applicants, possibly separately from the other issues contained in the Bill for the sake of expediency. 

Ciara Dowd

Thursday, June 12, 2014

WORLD REFUGEE DAY

World Refugee Day is taking place on the 20th of June. This day aims to draw attention to hardship faced by the millions of refugees who are forced to leave their homes as a result of conflict and persecution. World Refugee Day also aims to commemorate the cultural contribution that refugees make to societies around the world. There are events held worldwide to celebrate the courage, resilience and strength of refugees and the solidarity of the countries that assist in providing asylum. There are many events taking place in Ireland to commemorate this day.
 
Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law are hosting a conference to mark World Refugee Day from 10am to 3pm. The conference is titled Beyond the Single Procedure: Reforming Ireland’s Protection System, and will include speakers from the United Nations High Commissioner for Refugees (UNHCR), various refugee support agencies in Ireland, legal practitioners working in the area. Karen Berkley from our office will be speaking on topic of Statelessness. The conference will serve as a forum to discuss the refugee protection in Ireland and the impact of the pending reforms. To attend this event, please contact Bethany Wynee-Morgan on Bethany@nascireland.org
 
The Irish Refugee Council are holding an event at Studio Six, Temple Bar Gallery, Dublin 2 at 6pm with guest speak Geoffrey Shannon, Special Rapporteur on Child Protection. The success of the Irish Refugee Council’s Advocacy programme will be discussed in light of the launch of its evaluation and resource guide for service providers working with separated children. To attend this event, please RSVP to caroline@irishrefugeecouncil.ie
 
The UNHCR has organised a book-reading campaign with libraries and bookshops across Ireland, beginning the 16th of June. This campaign will draw attention to books that are based on experiences of refugees, such as The Kite Runner, which will in turn educate both children and adults on the devastating impact of war on families.
 
 
UNHCR and Sport Against Racism Ireland are holding the event “The Fair Play Cup, Celebrating World Refugee Week” at the Law Society Gardens, Blackhall Place, Dublin 7. This event will draw football players from refugee and community groups and aims to highlight the positive experiences of refugees in Ireland and draw attention to the plight of refugees worldwide.