REFUGEE CRISIS

Last month World Refugee Day reminded us of the plight of millions of refugees worldwide, but this thought should be kept in mind for as long as war and conflict continue. The world is currently experiencing a refugee crisis, the scale of which was last seen during World War 2. This is largely caused by the Syrian war, which has claimed 80,000 lives, forced 2.5 million people to leave the country and internally displaced a further 6.5 million.

How has Ireland typically reacted to refugee crises? In World War 2, when around 50 million people were displaced by conflict and millions of people persecuted, Ireland hosted 150 Jewish refugees. After Augusto Pinochet’s coup in Chile in 1973, which resulted in thousands of deaths and injuries, Ireland was one of the last EU countries to take Chilean refugees and in the end only took 12 families. The year 1956 stands out, as 541 Hungarian refugees were welcomed in Ireland.

Now, during the greatest refugee crisis since the Second World War, when the UN estimated that 51.2 million people were forcibly displaced people worldwide at the end of 2013, Ireland is taking 90 Syrian refugees.

This number is extremely low. Austria, a country with a GDP per capita not far off Ireland’s, will host 500 Syrians, as will the UK and France. Germany, on the other hand, has committed to providing 30,000 places for Syrians.

Though the efforts of Germany and the rest of the EU seem impressive compared to Ireland, the EU is receiving relatively few refugees when Syria’s neighbouring countries are considered. While 60,000 Syrians have claimed asylum in the EU since the start of the war, more than 2 million have fled to the Syrians neighbouring countries, such as Lebanon, Jordan, Turkey and Iraq. This means that the EU has only received 4% of Syria’s refugees.

Everyday, an estimated 2,000 Syrian refugees enter Jordan. Lebanon, a country the size of Munster, is accommodating 1 million Syrians that have sought refuge there. These countries cannot cope with this huge influx of people. In Lebanon, the population explosion has led to price increases, housing shortages and many social problems.

Moreover, Jordan’s position highlights that Ireland’s low number cannot be justified on cost grounds. Developing countries, like Jordan, take in the vast majority of refugees. Indeed, 80% of the world’s refugees are hosted in developing countries.

All EU states should aim to help ease the pressure off Jordan and Lebanon and endeavour to make a real effort to help the millions of Syrians that have had to flee their home. Ireland, in particular, should commit to host more than just 90 Syrian refugees.

In 2012, the former Justice Minister Alan Shatter admitted with regret that Ireland’s “morally bankrupt” regime of the 1930s kept the doors to this state “firmly closed to German Jewish families trying to flee from persecution and death.” It is not enough to realise our mistakes 60 years too late, now is the time to take responsibility and play our part.

Ciara Dowd

Brophy Solicitors

GUIDANCE ON THE TREATMENT AND ASSESSMENT OF BEST INTERESTS OF MIGRANT CHILDREN

UK Court of Appeal decision: EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874,

Summary of facts

The Appellants consisted of a mother, a father and three children, all Philippine nationals. The mother was lawfully resident in the UK on a work permit from June 2007. The rest of her family joined her in April 2008. In February 2011, the Appellants applied for indefinite leave to remain. This application was incorrectly rejected on the basis that it was made on the wrong form. This meant that when subsequent applications were made, they were dismissed on the basis that there is no right of appeal. When the matter was finally considered, the judge rejected the claim because EV was not being paid a sufficient amount for her to qualify. Her employer wrongfully failed to employ her at the relevant rate. The family were denied leave to remain and were expelled.


Summary of guidance

Christopher Clarke LJ held that when deciding on the best interests of a child, the factors that are to be considered are;

(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to live in that country;
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (at paragraph 35.)

He continued: “The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.” (at paragraph 36)


The significance of this case is that the Court of Appeal has given the most coherent guidance to date on how to interpret and apply the best interest of children in immigration cases. This judgment will be useful in giving guidance on the issues that should be addressed by legal practitioners and whether an immigration officer has made a proper assessment of a child’s best interest in their determination. This judgment is obviously not binding in Ireland but offers assistance in an area where there is little Irish case law, policy or guidelines.

Ciara Dowd

Brophy Solicitors

DIRECT PROVISION – URGENT CHANGE NEEDED

There is an urgent need for change in Ireland’s asylum system. As it currently stands, asylum seekers must wait in direct provision centres while their application for refugee status or subsidiary protection status is pending. Direct Provision was originally introduced as an emergency measure in 1999 and was only supposed to last for 6 months. Indeed, the reaction to this change from asylum seekers is observable - in 2000, there were 10,938 new applications, while in 2013, there were 946.

Currently, there are around 6,000 people living in Direct Provision accommodation centres. Because of the poorly structured application procedures, 59% of current applicants have been in this system for over three years and some have been there for over 6 years. The hardship of long periods of time living in Direct Provision is aggravated by the general poor standards of accommodation and lifestyle associated with these centres. The recent Economic and Social Research Institute report on Direct Provision notes a lack of privacy, overcrowding, a lack of facilities for children, and a lack of autonomy. The lack of autonomy with specific regard to food and the lack of exercise facilities mean that physical health problems are widespread. Mental health problems such as anxiety and depression are also common.

Internationally condemnation 

In fact, the Direct Provision procedure has received international condemnation. The Balseskin Reception Centre in Dublin has been condemned as inadequate for its conditions by the Council of Europe in a report on trafficking. Women and children who have been sexually exploited and abused are held in mixed gender centre, which may aggravate their trauma. 

The matter was raised in the High Court of Northern Ireland in Belfast, where the concern applicants were asylum seekers who applied for asylum in the Republic of Ireland but subsequently travelled to Northern Ireland. Mr Justice Stephens noted the poor treatment asylum seekers in Ireland experience, in particular, the absence of permission to work, the low allowance and widespread health problems. He found that the conditions of the centres were contrary to the best interest of the child [In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88(14 August 2013)].

Can change happen?

It seems as the government are satisfied with the poor standards associated with Direct Provision centres, as it operates as a deterrent to asylum seekers who may wish to claim refuge in Ireland. Fine Gael TD Charlie Flanagan said during Prime Time in January that it should be ensured “that Ireland is not an attractive place for applicants”, so the State would not become overburdened. Elsewhere, the Former Minister for Justice Alan Shatter has also defended direct provision on cost grounds. 

Thus, it is clear that if an alternative system were going to be considered by the government, it would have to be equally economical or even cheaper. While the €19.10 per adult and €9.60 per child is easy to calculate, it is harder to put a monetary value on the mental health issues that asylum seekers experience resulting from the lack of autonomy in the centres, or perhaps the insensitivity to victims of gendered crimes. This sanctioned ill-treatment of those who have not committed any crimes and who have already suffered enormously can no longer continue and be justified on cost effectiveness grounds. The government needs to be conscious of what legacy it wishes to leave behind on its treatment of asylum seekers.

Ciara Dowd
Brophy Solicitors

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 

Brophy Solicitors
 

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

Brophy Solicitors