Ireland will not benefit from EU Migration Law advancements

The Irish Presidency has advanced important developments to complete the final two legislative measures on the processing of Asylum Claims forming part of the Common European Asylum System (CEAS).

CEAS is provided for in Article 78 of the Treaty on the Functioning of the European Union. It provides that the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection in accordance with the principle of non refoulement and the 1951 Geneva Convention on the Status of Refugees.

The Irish presidency programme outlined the objectives to secure agreements in relation to the Student and Researchers Directive, Seasonal Workers Directive and the Intra Corporate Transfers Directive. The President also aims to establish the Asylum and Migration Fund Regulation, an instrumental part of an overall framework for EU financial support in the field of international security, to contribute to the operational costs at national and EU level of border control.

Proposals for compromise texts on the recast of the Asylum Procedures Directive and the Eurodac Regulation have been approved by Member States. The adoption of these measures remains subject to the approval of the European Parliament and the Council.

Minister for Justice, Equality and Defence, Alan Shatter, Chair of the Justice and Home Affairs Council stated in relation to these developments:

"Completing the Common European Asylum System will be an important milestone towards ensuring the consistent and equitable treatment of asylum seekers irrespective of the Member States in which they present their asylum application. 327,345 asylum applications were received in the EU in 2012, an increase of 7.8% on the previous year. It is vitally important that the Union has a system that ensures that procedures for processing applications are both fair and effective but also robust and not open to abuse. I am pleased that the Irish Presidency has been able to advance discussions with the Parliament and we are now hopeful of reaching an early agreement on this basis."

However, whilst it is evident these developments mark an important progression in the area of migrant reform, it must be noted that Ireland has ‘opted out’ of participating in the revised laws which form part of the CEAS, and not signed up to others including the Reception Conditions Directive. Only Ireland and Denmark failed to sign up to the latter, however unlike Ireland, Denmark has provided the right to work in separate legislation. Consequently Ireland will not benefit fully from this important milestone towards ensuring the consistent and equitable treatment of asylum seekers, placing Irish Immigration laws out of line more now than ever with that of other European countries. 

For information on this item and further developments of the Irish Presidency see: http://eu2013.ie/news/news-items/20130327ceaspr/

Brophy Solicitors 

04.04.13

APPLICATIONS FOR PERMANENT RESIDENCE CARD AND THE REQUIREMENT OF CO HABITATION

We act for many clients who are making applications  for permanent residence cards pursuant to of Directive 2004/38/EC and the EC (Free Movement of Persons) (No 2) Regulations, 2006 as amended.

Many of these applications are submitted on the basis that the applicant complies with the criteria of Article 16 (2) of the Directive – that is that he or she has resided legally with the Union citizen in the State for a continuous period of 5 years.  Similarly, Regulation 13 (6) refers to that family member “who has resided with the Union citizen in the State”

We submit that the requirements if Article 16/Regulation 13 is that both the EU and the non EU family member reside in the State for a five year period, but not necessarily that they co habit for the give year period. However, the Department of Justice continue to seek evidence that the couple resided together in the same household for that period.

We would refer to the case of PM (Turkey) [2011] UKUT 89 (IAC) in which the Upper Tribunal found that in the light of its objects and purpose Article 16(2) of the Citizens Directive is intended to afford all family members the right of permanent residence after five years residence in the host state where the EEA national has resided, whether or not they had actually cohabited throughout that period.

We would also point out that Article 7 (2) (and Regulation 6(3) (a)) both direct that a non EU spouse of an EU national shall be entitled a residence card if the EU spouse is exercising his/her EU Treaty Rights. Neither the Directive nor the Regulations direct that they be co habiting in order to be entitled to the initial five year residence card. Therefore, if the applicant has complied with the terms of Article 6/Regulation 6 for the period of their marriage, regardless of whether they were co habiting or not, it would be illogical to find the non EU citizen is then ineligible for the permanent residence card.

These points were assessed by Mr Justice Cooke of the High Court in the case of  Mohamud and Muna Abdulle Ali vThe Minister for Justice,  judgement dated 18^th February 2011.

Mr Justice Cooke held that requesting documentation that Ms. Ali had lived resided with Mr Mohamud was unlawful and unnecessary, since no such requirement had been directly stipulated in the Regulations or the Directive. Regulation 10(2) (b) even states that a non-EU national may retain the right to reside even in the event of divorce or annulment if the couple had been married for three years, including one year in the State. Mr Mohamud and Ms. Ali qualify under this stipulation as well. Therefore, Justice Cooke ruled that it was not a requirement that the non-EU national be residing in the same house with the EU national in order to qualify a residence card based on their EU Treaty Rights. The Court saying that it was a requirement is a mistake in law, and Justice Cooke quashed the refusal order.

Brophy Solicitors

10.08.12

Immigration Backlog: New Warning from watchdog

The UK Border Agency is facing a growing crisis as the number of foreign nationals remaining in the State after their visas expires has risen to 150,000, reports an article from BBC news. The article reports that there is “no clear strategy” for how to prevent this from becoming a backlog, further increasing the chaos and inefficiency of the current system.

Many of these now-undocumented foreigners are students who have completed their degrees, and their permission to remain in the State as a student has expired. Some have tried to apply for permission to continue residing in the State, but without a significant tie to the UK, like a highly skilled job or a spouse, these applications are refused. Once their permission to remain has expired, they must exit the State or face a deportation order. Of these migrants who have been told to leave, the Border Agency has no way to tell how many have actually left. This creates a problem in the Border Agency’s eyes because that means that there is a growing population of undocumented migrants residing in the state. There is currently no scheme in place to hasten their removal.

The article reports that poor management leads to long queues at the airport as well as a backlog of work. This causes the immigration system to run even more inefficiently.

Brophy Solicitors

02.08.12

http://www.bbc.co.uk/news/uk-18715036

Racist bullying of migrant children ‘ignored’

 An article in the Irish Independent from July, reports that racist bullying towards migrant children is increasing. Rather than developing a solution, perhaps by targeting the ignorance through educational outreach programs, the migrant children are told to develop a “thicker skin” to cope with the bullying. The article describes how “the ICI [Immigrant Council of Ireland] is calling on the Government to tackle racism and xenophobia ‘as a national priority’ through education and awareness-raising campaigns.” These migrant children have already endured hardship and trauma in their transition to a brand-new country, and the last thing they need is to face racist bullying from their peers at school. The Government should respond to the call from the ICI and establish programs that seek to reduce or eliminate such xenophobia.


Brophy Solicitors
2.08.12

http://www.independent.ie/national-news/racist-bullying-of-migrant-children-ignored-3161898.html

Migrants Petition for Regularisation

A petition signed by 4,000 members of the public landed on the desk of Tom Cooney, special advisor to Minister for Justice Alan Shatter, reports an article in the Irish Times. The petition was organised by the members of the Justice for the Undocumented campaign, which seeks to illuminate the plight of undocumented immigrants in Ireland. The petition had a specific mission, to seek support for the Migrant Rights Centre Ireland, which “aims to allow undocumented migrants living in Ireland to enter an earned regularisation scheme which would require undocumented people to work over a period of time, pay taxes and meet other criteria before being allowed residency.” This scheme is crucial to give undocumented migrants a voice in Ireland. It is not a hand-out, and it is not amnesty, it is simply recognising the presence of undocumented migrants, allowing them to step out of the shadows, and stop living in constant fear. For most undocumented workers, living illegally in the State is better than the alternative, which is to return home lawfully and risk being unable to support their families. The petition aimed to encourage the state to commence searching for a solution.

Brophy Solicitors

31.07.12

http://www.irishtimes.com/newspaper/breaking/2012/0718/breaking29.html

Immigration: are foreign students visitors or migrants?

A video report released by BBC recently discusses the on-going governmental debate about whether or not international students studying in the UK should be considered immigrants or visitors. Right now, the official answer is immigrants, but there is talk of changing it to visitors.

The Business and Education Department supports the change in status of international students from immigrants to visitors. They argue that students arrive in the UK with the intent to study for a few years and then return to their home country upon the completion of their degree. The Department recognizes the significant economic contribution that international students make to the economy—currently estimated at £8 billion per annum, and that figure is expected to rise. The Department also raises concerns that other countries such as the US, Australia, and Canada are aggressively campaigning for foreign students to come to their countries to study, and the UK recognizes that it is falling behind.

The Home Office, however, is dead set against the change. They believe that international students should be classified as immigrants. They acknowledge the figure that 20% of international students never actually leave the State following the completion of their degree, for a number of reasons, including marriage to a UK national, a work permit, or other strong ties to the State. They are, without question, immigrants, and the Home Office believes that classifying these students as anything other than immigrants would be “fiddling the figures.” It is surprising, however, to note that the Home Office is against the change. The UK tries to keep their net inward migration totals below 100,000 per annum, whereas the level is currently at about 250,000. A change in status of international students would lower this number significantly, meaning that the UK would be more on target with their net inward migration goals, but the Home Office allows that such a change would be simply manipulating the data. Critics say that classifying international students as visitors may deter them from applying to study in the UK, but the Home Office rejects this argument, saying that there has been a 9% increase in foreign applicants in the past year.

Brophy Solicitors

http://www.bbc.co.uk/news/uk-politics-18856411

Lack of Legal Advice given to Illegal Immigrants

In an article in the Irish Independent last Tuesday, the 10^th July, the author describes how many illegal immigrants detained in Northern Ireland are not receiving proper legal council. Reports have shown that the number of people being detained has risen by almost 75% since the stricter border patrol enforcement, known as Operation Gull, was introduced six years ago. While many of those detained are illegal, thus making it within the rights of the state to deport them, a good number have legitimate claims to stay in the state, and they are not receiving proper legal representation to ensure that their rights are being recognized. They arrive without intending to break immigration laws; they have legitimate reasons for wanting to come to the UK. They just lack the language, agency, and voice to make their situations known on a legal stage.

Not only that, but there is a growing concern of ethnic profiling at these ports of entry, and that many people who are being detained without consideration of their situation are being denied their rights because of their ethnicity.

Brophy Solicitors

18.07.12

http://www.independent.ie/breaking-news/national-news/concern-at-illegal-immigrant-advice-3165580.html

Deportation Order for a Chinese National

An article in the Irish Times from Wednesday, 18^th July, reported that a Chinese national, Qing Wu, had lost his High Court challenge. He had received a deportation order in 2009, but he had changed addresses without notifying the Minister, so his notices went unread. He attempted to challenge the deportation order, owing at least in part to the fact that he has an Irish-born child and part because he had not received the deportation orders, but the case was ultimately unsuccessful. The onus was on him to notify the Minister if his circumstances changed. The author reports that by the time the case came to be heard before the High Court, Mr Wu was on a plane to Frankfurt, where he will be further escorted to Beijing.


Brophy Solicitors
18.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0718/1224320307476.html

Médecins Sans Frontières (MSF) Ireland Event for Next Wednesday on Refugees in South Sudan

News coverage has demonstrated that the condition in South Sudan has worsened as we approach the one year anniversary of its secession from Sudan. Médecins Sans Frontières (MSF) Ireland is hosting a free event on 18^th July at the Royal Irish Academy, Academy House, 19 Dawson Street, Dublin 2 at 6.30pm. This event will address the growing refugee crisis in South Sudan, accompanied with photographs and highlights of MSF projects. Jane-Anne McKenna, head of the MSF Ireland office, has just returned from nearly a month in the region, and she will comment on her experience, as well as the work that MSF has done there, and hopes to achieve in the future. The event promises to be a powerful statement on the lives of refugees, and interesting to observe from an immigration standpoint. Many immigrants from East Africa are arriving in Ireland to seek asylum, and it is important to understand where they have come from.

The event is free, but donations will be accepted for the South Sudan Emergency Appeal. For more information, please visit: www.msf.ie/south-sudan-appeal.

http://www.activelink.ie/node/9553

Brophy Solicitors

12.07.12 

Political Support for Undocumented Migrants in Ireland.

The annual Labour Party conference took place on the 15^th of April 2012. At this conference the Labour party put forward a motion to support the regularisation of undocumented migrants in Ireland. The conference noted that there is an estimated 30,000 undocumented migrants residing in Ireland today and recognised the undue strain and hardship this caused to these individuals and their families who remain in constant fear of deportation. Many of these families live in poverty as they cannot benefit from basic social services such as health and education. The conference also recognised the isolation they experience within the state, as they are unable to return home to visit family members and friends in their home country, as they fear they risk being unable to return to the state afterwards.

The conference proposed putting in place an Earned Regularisation Scheme. This would involve undocumented peoples being given an opportunity to earn permanent residency over time by adhering to a specified criteria such as working and paying taxes. This would confer benefits both on state and on the undocumented persons by encouraging economic and social integration.            

The Migrants Rights Centre Ireland welcomed this motion by the Labour Party. "This is a very significant step in realising the human rights and dignity of undocumented men, women and children living in Ireland. The passing of this motion recognises that undocumented people are rooted within our communities and demonstrates a commitment to protecting the most vulnerable" said Edel McGinley of the MRCI.

Brophy Solicitors welcomes any initiative moving to recognise the rights of the undocumented worker in Ireland and we appreciate and praise the commitment of the MRCI towards the protection of undocumented workers in the State.

Brophy Solicitors

18.04.12

PERMANENT RESIDENCE – THE ZIOLKOWSKI/SZEJA CASES

Permanent residence is to be granted to EU citizens after five years of continuous legal residence in another member state. The status of permanent residence ensures that citizens no longer have to comply with conditions that must be met by those without that permanent residence status – such as the on going requirement to be economically active or sufficient resources with adequate medical insurance. Furthermore, permanent residence gives Union citizens increased protection from expulsion.

We are working on many applications for permanent residence for our clients, and we watch the developing case law from the Court of Justice with much interest. From time to time, we like to bring some of the more helpful case law to our reader’s attention. One such judgement was delivered by the Grand Chamber of the Court of Justice the 21^st of December 2011 - in the cases of Ziolkowski and Szeja (Joined Cases C‑424/10 and C‑425/10), both cases referred from Land Berlin.

The Court of Justice was asked to consider the cases of two Polish nationals who had been refused applications for Permanent Residence pursuant to the Citizenship Directive (2004/38/EC), and were further refused on going permission to remain on the basis that the applicants were not economically active/self sufficient with medical insurance.

The first question referred to the Court of Justice was as follows;

Whether Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident in the territory of the host Member State for more than five years on the sole basis of the national law of that Member State must be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not fulfil the conditions laid down in Article 7(1) of the directive.

Following an analysis of other provisions in the Directive, the Court of Justice summarized the three stages of EU Law

39        First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State.

40      Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.

41      Third, it is apparent from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State.

At paragraph 46, the Court concluded that legal residence after the first three month period requires residence in compliance with the conditions contained in the Directive, and particularly Article 7 (1) of the Directive, that is either as a worker/self employed person/student/financially self sufficient person (with health insurance). On the fulfilment of five years in conformity with these conditions, the union citizen acquires the right of permanent residence, and should be subject to no further conditions.

However, the Court emphasized that a Union citizen who has resided for five years in the host Member State and during that time was not an economically active person, cannot presume eligibility for permanent residence.

In the cases referred to the Court, it was accepted that the applicants had never satisfied the conditions laid down in Article 7(1) of Directive 2004/38, and therefore were not entitled to permanent residence.

In answering the second question the Court found as follows;

“periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.”

Brophy Solicitors

12.04.12

CASE STUDY – SOMALI ASYLUM SEEKERS AND DILEMMA FACING DECISION MAKERS - QFC, AMC v RAT, MJELR, (2012) IEHC 4

Justice Cooke recently granted leave to seek a judicial review in respect of a negative asylum decision on the basis of the decision maker’s failure to assess the possibility of future persecution open to asylum seekers if returned to Somalia.  Asylum was refused to the Applicant as result of credibility findings but Justice Cooke noted the dilemma that faces decision makers in cases where credibility issues arise but the applicant is also from an undeniably dangerous country. 

Justice Cooke held that, “any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so.”

The judge held that the fact that the Applicant had a child with a man who was not her husband could lead to persecution if she was returned to Somalia. The lack of credibility with regard to past persecution did not exclude the possibility of future persecution. He held that “the particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence.”  

You can read the full judgement here.

ROMANIAN AND BULGARIAN PARENTS OF IRISH CITIZEN CHILDREN TO HAVE UNRESTRICTED ACCESS TO THE LABOUR MARKET

We have been informed that a Government decision was reached on the 28^th February last to permit Romanian and Bulgarian parents of Irish citizen children unrestricted access to the Labour Market with immediate effect. We understand that notice of this change will be posted on the Department of Job, Enterprise and Innovation this week.

It seems that this change in the law will be automatic, and immediate; Therefore Romanians and Bulgarian who arrived in the State from 2007 onwards and who are the parents of Irish citizen children will not be required to apply for work permits in order to be legally employed in the State. For those already in employment, they will be automatically regarded as legally employed.

The decision comes following a number of cases, which have recently been issued in the High Court to challenge the State’s policy to exclude Romanian and Bulgarian parents of Irish citizen children from the ambit of the Zambrano judgement. In one such case taken by this office, we claimed on behalf of our client that the State had acted unlawfully in failing to give preference to him, as a citizen of the European Union, over third country nationals in respect of access to the labour market in the State. Furthermore, it was argued that the State had acted unlawfully by discriminating against the applicants as families consisting of Irish citizen children with a Romanian/Bulgarian parents by treating them less favourably in respect of the parent’s access to the labour market when compared with families consisting of an Irish citizen children with a third country national parent.

We very much welcome the State’s change in position to accept that all Romanian/Bulgarian nationals, who are parents of Irish citizen children, must have full access to the Labour Market.

Brophy Solicitors

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

Opening of the Irish Refugee Council Law Centre

Congratulations to the Irish Refugee Council (IRC) on the official opening of their new independent Law Centre!

The President of Ireland, Michael D Higgins, last Friday formally launched the IRC Law Centre together with the European Database on Asylum Law at a very well-attended event at the Distillery Building. The Law Centre currently employs two solicitors and two legal officers. It aims to provide early legal advice to asylum seekers in the initial stages of the asylum process. The service can be reached through an outreach clinic, contacting the centre directly, or referrals from other organisations.

In his address, President Michael D referred to the protection gap and unmet need for legal advice for asylum seekers that the Law Centre seeks to fill. The President referred to his own previous and extensive experience as a TD dealing with numerous constituents who were facing difficulties with the immigration process.

Our own experience is that asylum claims are often poorly investigated and presented at the early stages, which leads to the need for further legal challenges later. This impacts negatively both on the applicants, who often wait a very many years for a final outcome, and on the courts system, which has become overburdened with unresolved asylum claims.

We anticipate that the Law Centre will provide valuable advice and support to applicants at the earliest stages of the process and help ensure that such claims are properly presented and future delays kept to a minimum.

We wish the Centre every success!

Brophy Solicitors

19.02.12

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

SHATTER ANOUNCES TWO INIATIVES: IMMIGRANT INVESTOR PROGRAMME AND START-UP ENTREPENEUR SCHEME

The Minister for Justice, Equality & Defence, Mr. Alan Shatter, TD, recently the introduction of two new immigration initiatives aimed at facilitating (non EEA) migrant entrepreneurs and investors who, in return for permission to reside in the State, are prepared to invest here for the purpose of saving or creating jobs.

The Immigrant Investor Programme:

The sort of investments envisaged will include a specially created low interest Government Bond, capital investment in an Irish business, endowments in the cultural, sporting educational or health areas will also be considered.The level and duration of financial commitment required from the Investor will depend on the nature of the investment but will generally range from €400,000 for endowment-related investments to €2 million in the new Immigrant Investor low-interest bearing Government Bond to be devised by NTMA in conjunction with the Immigration authorities. The level of investment in business entities where jobs are being created or saved will generally be €1 million and the Department will be guided by and reliant upon the advice and expertise of IDA Ireland and Enterprise Ireland in assessing individual proposals.

Approved participants in the Investor Programmes and their immediate family members will be allowed enter the State on multi-entry visas and to remain here for a defined period. Ordinarily this will be for a period of 5 years - reviewable after 2 years.

The Start-up Entrepreneur Programme:

The Start-up Entrepreneur Programme provides that migrants with a good business idea in the innovation economy and funding of €70k can be given residency in this State for the purposes of developing their business (this compares with a previous minimum funding requirement of €300k). No initial job creation targets will be set as it is recognised that such businesses can take some time to get off the ground. Projects will be evaluated by an Evaluation Committee with State Agencies playing a key role in "picking winners" or those who demonstrate a good idea or the potential to be a winner.The business proposal must have a strong innovation component.The applicant must not be a drain on public funds.All applications for both programmes will be considered by an Evaluation Committee comprised of representatives of IDA Ireland, Enterprise Ireland, the following Government Departments; Finance; Jobs, Enterprise and Innovation; Foreign Affairs and Trade; Health; other Government Departments as the need arises and the Minister’s own Department of Justice. Applicants must be of good character and be able to support themselves while in Ireland. Applicants will be required to attest to their bona fides on affidavit sworn here.

An Annual Report will be published on the operation of the Programmes and they will also be reviewed to ensure that they continue to meet their objectives. The Programmes offer no special access to Irish citizenship. Beneficiaries will be subject to the same rules as other migrants in that regard – i.e. generally residence in the State for at least 5 years.

Next Steps

The Minister indicated that he hoped to have the new schemes formally launched by mid March when the detailed rules governing the Programmes which are being worked upon by officials in the Department of Justice will be published. He said no new legislation is required as the pre-existing legislative powers of Ministerial discretion are sufficient to enable the programmes to operate in a flexible manner.

Irene Carney

irene@brophysolicitors.ie

01.02.12

DETERMINATION OF ZAMBRANO CASES TO DATE

Pamela Duncan in the Irish Times reported last week that more than 850 non-EU parents of Irish-citizen children have been granted residency in Ireland since the ECJ issued its ruling in the Zambrano decision which created rights of residency for parents of Member State citizen children. Apparently, six parents of Irish citizen children who were previously deported have been granted permission to re-enter the State. 

1000 cases have been processed to date by the Minister who said that the decisions were taken “in the best interests of the welfare of eligible minor Irish citizen children”.

The Irish Times reports that 700 cases remain outstanding; ‘In approximately half of those cases the department has requested further documentation or clarification from the applicants before their cases can be progressed. This number does not include other non-EU parents of Irish-born children who had an existing right of residency, for example where people were lawfully resident on a worker, spouse or student visa.’ 

We have a number of outstanding applications as well as a number of applications which we have requested a review following a negative decision. One such decision was reached upon the Minister’s determination that the father of an Irish citizen child who resides with his child in the State, was not seen to have shown evidence of a ‘relationship of dependency’ between both he and his child. Other applications are outstanding whereby the applicant parents reside outside of the State with their Irish citizen child(ren). We submit that a refusal of such applications is in turn a refusal to permit entry to the State by an Irish citizen. We are however pleased that one application concerning the father of an Irish citizen child residing outside of the State was granted after a nine month delay in determining the visa application. 

Various complications arise in the submission and in the determination of Zambrano applications. It seems to us that the very reliance on the word ‘Zambrano’ when applying for residency/Stamp 4 on behalf of a client triggers a delay on their application for residency where that application might also be based on other factors for example a relationship with an Irish citizen. We have also encountered situations whereby applications to renew a permission granted under leave to remain are delayed whenever submissions are made in respect of an Irish citizen child. Therefore, otherwise uncomplicated, straightforward applications for residency which would normally be considered rather promptly are faced with delays and requests for further and specific documentation. We note that in one of our cases, an applicant had been granted a visa to join his Irish partner in the State without any difficulty. He is also the father of his partner’s child, an Irish citizen. As a result, he was permitted to register under Stamp 4 when reporting to the GNIB, which in our experience has been standard practice, but was asked to make an application to the Minister for residency based on his parentage of an Irish citizen child. This application is still pending, the applicant has not been permitted to work, even for a temporary period and has been forced to return to his home country much to the dismay of his Irish partner and mother of his child. 

In another situation, two applicants from the same country, with the same background and immigration history had both submitted applications for leave to remain on the very same date, 3years ago. We were notified by the Repatriation Unit that both applications were due to be considered. One of the applicants had in the meantime become father to an Irish citizen child. His application for leave to remain was put on hold. His friend’s application was determined and was successful. 

We will keep you informed as matters develop and welcome your thoughts and comments on these issues. 

Sarah McCoy

sarah@brophysolicitors.ie

01.02.12

Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 

Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.

A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28^th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.

Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.

These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.

Brophy Solicitors

23.01.12

Standing Up For Migrants Rights

A survey by the One Foundation, reported in the Irish Times yesterday, has found that TDs fear that showing support for migrants may damage their electoral chances. Almost two thirds of those TDs surveyed said that they had encountered racist attitudes while canvassing.

This survey follows the recent resignation of Darren Scully, Major of Naas and Fine Gael Councillor, who stated in two separate radio interviews that in the future, he would refuse to represent African constituents.

Such attitudes are deeply depressing and contrast sharply with the positive attitude towards integration and life in Ireland expressed to us by many of our clients. It also contrasts sharply with the positive innovation of citizenship ceremonies for new Irish citizens that were recently introduced (see our post). 

We followed with interest  the ceremony held in Cork last week where retired High Court judge Mr Justice Bryan McMahon welcomed 635 “new Irish”. 

Mr Justice Bryan McMahon welcomed the “new Irish” saying: “The State, in granting you citizenship, does not ask you to surrender your own identity . . . when you make your life here, do not forget the country or the culture you come from, bring your stories, your music, your games – enrich our lives.”

The introduction of the citizenship ceremonies is certainly a positive, if limited step, towards addressing integration of migrants into Irish society. But much more is needed. We recall that the programme of the current government promised to: “promote policies which integrate minority ethnic groups in Ireland, and which promote social inclusion, equality, diversity and the participation of immigrants in the economic, social, political and cultural life of their communities.”

The Integration Centre recently launched a Roadmap to Integration that puts forward a number of affordable and practical proposals. You may recall our previous post on this important document. We again welcome implementation of such a roadmap and hope that an inclusive regime will help overcome the negative attitudes highlighted in this survey of TDs.

Brophy Solicitors

12.12.11