UPDATE ON FAMILY REUNIFICATION OF DEPENDENT PARENTS

We were recently successful in an application for Stamp 0 made for dependent parents of an Irish national. We have previously faced difficulties in a similar case and the current case gives some indication of what factors may persuade the Department to grant permission tone case over another. 

These are cases where Irish citizen children apply for permission to reside in the State for their dependent parents, who are non-EEA nationals, demonstrating that they have the necessary financial means to support their parents and that their parents will not place financial burden on the State. They must demonstrate that their parents are in fact dependent on them financially, socially and emotionally. In several cases we have dealt with, dependent parents have severe medical conditions and health problems, and no viable options for care and support in their home countries.

The Irish Naturalisation and Immigration Service (INIS) Policy Document on Non-EEA Family Reunification is applied by INIS when considering and determining these cases. The policy places rigorous financial threshold on applicants, requiring the sponsor of two dependent parents to evidence an income of €75,000 to support the application. 

In a previous case we have dealt with, an application made by a sponsor in a strong financial position was refused and one of the reasons cited in the refusal was the fact that the parents were in the State unlawfully. In that case, medical evidence had been provided confirming that one of the applicant’s parents could not to undertake long haul flights and hence remained in the State after their permission had expired. Nonetheless, the fact of their unlawful residence was held against them. That case is currently subject of High Court litigation. 

In our recent case that was successful, the parents were also in the State unlawfully, their permission having expired while the application was pending. Medical evidence was also provided showing that they were not fit to fly. However, what appears to have been the factor that distinguished the recent case was that the sponsor clearly evidenced the very strong financial position and substantial income and therefore clearly established that the sponsor would have absolutely no difficulty supporting the dependent parents in the State. We were able to make convincing submissions that there could be no reasonable prospect that the parents would become a financial burden on the State and it appears that the financial position may have been a decisive factor in ensuring the application was successful. 

It is also noteworthy that this application was processed in just over three months, which was relatively quick. The clients are obviously enormously relieved at the outcome. 

Rebecca Keatinge

Brophy Solicitors

SUBSIDIARY PROTECTION APPLICATIONS

We note that the Minister for Justice and Equality has made contact with some of our clients with pending Subsidiary Protection applications advising them as to the new procedure for determination of such applications following the judgement in the MM Case. Responsibility for processing Subsidiary Protection cases has been transferred from the Irish Naturalisation and Immigration Service (INIS) to the Office of the Refugee Applications Commissioner (ORAC). The new procedure is not however in place but implementation is at an advanced stage. As expected, the procedure for applying for this type of protection reflects the asylum application procedure. Whereby clients will apply through ORAC where there will be a personal interview. For existing applicants, there is an opportunity to submit further representations at this stage. If the decision of ORAC is negative, an oral appeal can be made before the Refugee Appeals Tribunal. 

Applicants with outstanding applications are well aware of the fact that they could face a considerable, further delay in having their applications finalised having already been through the asylum application process. Many of our clients feel that they are in a vulnerable position and face the prospect of remaining even longer in State direct provision accommodation which for many is simply inadequate. We shall update our readers further when we receive more information from the Minister regarding the implementation of the new procedure.

Sarah Henry

Brophy Solicitors

Domestic violence and immigration law issues brought before Oireachtas Justice Committee

The Immigrant Council of Ireland, as part of the Domestic Violence Coalition, has called on the Government to introduce new laws formally recognising the issue of domestic violence in Irish immigration law. Approximately 10% of the Immigrant Council’s overall caseload involved domestic violence however the Council noted in its submission to the Oireachtas Justice Committee that many victims may not be coming forward for fear that it could impact on their right to remain in Ireland. This fear, coupled with administrative barriers and lack of access to safe emergency housing, can leave people vulnerable to threats, abuse and violence.

In addition to legislative action, the Council called for short term measures to be taken in the form of a coordinated administrative response by the Irish Naturalisation and Immigration Service, the Department of Social Protection and the Health Service Executive. It also welcomed a policy clarification issued by INIS in 2012 regarding the possibility of applying for an independent residency permit for non-EEA nationals who are experiencing domestic violence.

However the Council noted the shortfalls of this guidance, namely its reliance on discretion and the lack of clarity as to what type of status would be granted or the likely processing time for the application. It also cautioned that the €300 fee required for a Garda National Immigration Bureau certificate of registration that is paid after a successful application, was a serious barrier to applicants since many would previously have been financially dependant on their abuser and would therefore struggle to pay the fee. The Council emphasised the importance of continuing social welfare payments for eligible non-EEA victims of domestic violence regardless of the stage of their immigration application and regardless of their current immigration status.

The Council also suggested that the UK experience of introducing and refining a domestic violence concession could provide useful guidance in both the legislative and administrative context. This includes a wide definition of domestic violence, equal application to male and female partners, married and unmarried couples and to opposite and same sex relationships. Fee exemptions, legal aid and flexibility regarding evidentiary requirements were also suggested. Importantly being undocumented should not prohibit making an application as the time taken to appreciate or be advised that there is a remedy available may mean that leave has expired in many cases.

In their submissions the Council also urged the Irish government to sign and ratify the Council Of Europe 2011 Convention on Combating and Preventing Violence against Women and Domestic Violence which has already been signed by 26 members of the Council of Europe. 

Freya Foster

Brophy Solicitors