Irish Times Article - Judge tells ill South African couple they can remain in State

http://www.irishtimes.com/newspaper/ireland/2012/0225/1224312374191.html

AN ELDERLY and ill South African couple whose Irish citizen daughter and her husband had offered to allow them live with them have won a High Court order overturning the minister for justice’s refusal to allow them to live in the State.

In his judgment yesterday, Mr Justice John Cooke overturned the minister’s July 2010 refusal to grant permission to Leon (72) and Margaret (68) Lemiere to live here.

He ruled the minister’s decision did not properly take account of the constitutional family rights of the couple’s daughter, Desiree O’Leary, and her husband, and was not based on a fair and reasonable assessment of the facts of the case. The O’Learys and the Lemieres had brought the judicial review proceedings challenging the refusal to allow them remain in the State on grounds including that the decision breached their family rights.

Ms O’Leary, a UCD lecturer, and her engineer husband, Diarmuid, wanted the elderly couple to stay with them after both became ill and housebound following their discharge from hospital in South Africa in 2008.

The Lemieres lived in Durban where security was a constant and daily problem as, despite having elaborate security precautions, their home was a frequent target for burglars, the court heard.

They previously obtained temporary permissions to stay, with their last permission running up to July 31st, 2010, on condition they did not have recourse to public funds or State benefits and services.

In his judgment yesterday, Mr Justice Cooke said he was satisfied the minister had given inadequate consideration to the need for balance between protecting the applicants’ family interests under article 41 of the Constitution and the State’s interest in maintaining the integrity of immigration laws.

The crucial point was not the Lemiere couple’s right to enter and remain in the State, but the O’Leary couple’s constitutional rights as Irish citizens to look after family members within the State.

The O’Leary couple, as adult Irish citizens, and their dependent elderly parents, constituted a family within the meaning of article 41 of the Constitution and, as such, invoked the protections envisaged by that article, he held.

Those protections included the entitlement of the family to run its own internal life and affairs without interference from the State, unless such interference was justified. The judge added he found the O’Learys were open and candid in their effort to find a way to have the parents stay in Ireland.

He rejected arguments by the minister the challenge should be dismissed on grounds there was no express provision in Irish legislation for an Irish national to apply on behalf of a non-EU national who was their dependant to join them in the State. He further dismissed claims of a lack of good faith by the applicants in their dealings with the department.

The minister acted incorrectly in assessing dependency only in respect of financial grounds when dependency was argued in a much broader context, the judge ruled.#

Irish Times

25.02.12

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

Constitutional challenge to establish right of Irish Citizens to the company of dependant Non EEA parents

We have previously blogged about this case when it was first heard before Mr Justice Hogan in July 2011.Over the last two days, the substantive hearing of the case was heard by Mr Justice Cooke. Submissions are now complete, and we must now await the High Court's decision.

The case concerned an Irish citizen couple who have applied for permission to remain in the State for their non EEA elderly parents, who we say are dependant upon them. 

The legal argument was focused on whether Article 41 of the Constitution, which guarantees the protection of the family as the "natural primary and fundamental unit group of society" , extends to include an adult Irish citizen and their elderly dependant parents. We argued that it does, and where dependency exists between the adult citizen and their parents, Article 41 protects the Irish citizen's right to the company of their parents, in the absence of reasonable and legitimate countervailing grounds which the State may raise. The State's position was that Article 41 offered no protection to our clients whether or not dependency existed, because our clients did not constitute a family unit within the meaning of Article 41. In other words, they argued that as an adult married citizen, one can no longer regard one's parents to be part of the family unit as envisaged by Article 41. A second argument was made that the dependency link in our clients' case was not sufficient to amount to dependency in legal terms.

There is no authority in Irish law to date to establish whether a family comprising of two married couples (i.e. the married Irish citizen and the married non EEA dependant parents) derive protection from Article 41, and if so, whether such protection would require the State to grant the dependant parents permission to reside in the State. Therefore, this case was argued on novel Constitutional grounds, and if successful, could establish a very significant new Constitutional right.

We eagerly await Mr Justice Cooke's judgement, and will post a further update at that time.

Brophy Solicitors

19.10.11

ARTICLE 8 AND THE RIGHT TO COMPANY OF FINANCIALLY DEPENDANT NON EU NATIONAL PARENT

UK Court of Appeal Judgement, AAO and The Entry Clearance Officer, 22^nd July 2011

An interesting judgement was delivered by the Court of Appeal (England and Wales) last week in the case of AAO and The Entry Clearance Officer. The Court assessed the relationship of adult British citizen and their financially dependant non EU parent under Article 8 of the European Convention of Human Rights. We are very interested in the Court’s findings as we are working on number of similarly factual cases for our clients.

The case involved an application by 69 year old Somalia national who had been living in Kenya to enter the UK to join her British national daughter. The Applicant was financially dependant on her daughter, who sent her monthly payments of approximately $100. She was also in poor health, and dependant on neighbours for daily care. The British national daughter had seven children and was herself dependant on State welfare.  The Clearance Officer refused her application for indefinite leave to join her daughter as a relative and financial dependant. The Asylum and Immigration Tribunal upheld this decision, and the Applicant appealed on the basis that this was a breach of her Article 8 rights. The argument was made on her behalf that financial dependency could constitute family life within the meaning of Article 8.

The Court of Appeal (England and Wales) found that family life within the meaning of Article 8 would not normally exist between parents and adult children in the absence of further elements of dependency which go beyond normal emotional ties. Lord Justice Rix states as follows;

“although the money sent to her mother by the daughter raises an element of dependency, it is not one which in my judgment takes the matter very far. The provision of such money can be as much an insulation against family life as evidence of it. In any event, there is nothing to prevent the daughter continuing with the provision of money to her mother in Kenya: therefore to this extent there is no interference with family life”

We believe that financial dependency alone may not meet the Article 8 threshold, but it is a very relevant and indicative factor in the assessment of family life. The financial factor is often coupled with many other factors which would bring a case within this threshold, for example emotional dependency, frequency of contact evidencing a close relationship, obstacles prevent family life to be maintained outside the State.  We have a similar case coming up for hearing before the High Court next October, which we believe includes all these factors, and which we believe falls within the ambit of Article 8 and Article 41 of the Irish Constitution. We will keep you updates as to the outcome of this case.

Update on the rights of residency of dependant parents

POSITIVE DECISION ON RESIDENCY RIGHTS OF PARENTS OF ADULT IRISH CITIZENS

We were very happy to obtain a (very!) positive decision from Mr Justice Hogan in respect of a case we had taken challenging the Minster for Justice’s refusal to grant permission to reside for the dependant elderly parents of an Irish citizen. The hearing was for leave to apply for Judicial Review, and the fact that this case ran for three days reflects the complexity and novel nature of the legal submissions being made.

The argument submitted by the Minister was that the no right existed for adult Irish citizens to have their dependant parents reside with them in the State, and any infringement of family rights was reasonable, proportionate and properly within the Minister’s discretion.  A central point in the case thus became whether the circumstances of the Applicants, as Irish citizens applying for their dependant parents to reside with themin in the State, triggered the protections of Article 41 of the Constitution.

  “1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

Mr Justice Hogan clearly confirmed that the rights of Irish citizen adults to the company of their dependant parents does engage Article 41 of the Irish Constitution. He stated that the decision to care for elderly parents clearly engages the “moral nature of the family as an institution”. This is an important legal point, and one which had not been previously confirmed by the Irish Courts.

Mr Justice Hogan made some further very important findings in his judgement – he has re  defined the concept of financial dependency, which in the case of TM v Minister for Justice was held to mean "essential support". Mr Justice Hogan instead held that to financial support which is "appreciable and significant in the context of the recipients" is sufficient to amount to dependency.

We believe that the decision recognizes some important factors in family and immigration law, and will be very relevant in many cases concerning Irish citizens seeking to be joined in the State by their family members.

See article in the Irish Times, July 1^st 2011, covering the High Court’s decision.

Karen Berkeley, Brophy Solicitors

05.07.11