Revocation of Refugee Status

It has been reported in an article in today’s Irish Times , that Minister for Justice Alan Shatter, recently confirmed in a parliamentary question that 57 people had their refugee status revoked since he took office in March 2011. The Minister cited the main reason for the revocations being the provision of ‘false or misleading information’.  

Theses figures show a substantial increase in the numbers of revocations of refuge status in the recent years. 

Reference is made in the Irish Times article to a case of Brophy solicitors where a man from Darfur had been given refugee status but when he tried to have his family brought over to Ireland. The Minister wrote to him saying he proposed taking away his refugee status as he was found to have changed information on how he got to Ireland. The client provided an erroneous answer in his asylum interview solely with respect of the specific dates on which he witnessed certain attacks on his village and on his fellow villagers. He also failed to provide information in relation to a short period he spent in another EU Member State prior to coming to Ireland and claiming asylum. He instructed that the error was made on account of a number of factors. When interviewed by the Department of Justice official, he was extremely fearful of making any reference to time spent the EU Member State prior to arriving in Ireland as he feared that he would be returned there, believing he would subsequently be removed directly to Sudan where he would face ill-treatment and torture. Furthermore, on arrival in Ireland, he was confused and still experiencing trauma. It was never the intention of the client to fabricate an asylum claim or elaborate his account in any way but rather to protect himself against potential return to Sudan. The only error he made was only with respect of the dates, the entirety of his remaining account was truthful and correct.

Through very detailed written submissions and explanations over an extended period of time, ultimately, the Minister decided not to revoke our client’s refugee status. The case highlights the caution needed in the revocation procedure for refugees.  It is essential that the refugee has access to good standard of legal representation. However, it is questionable whether such applications fall within the remit of the Refugee Legal Service, and often refugees tend to have not option but to instruct private solicitors.  

The grounds for revocation of refugee status are set out in Section 21 of the Refugee Act 1996 . If one of those grounds exist, the Minister has a discretion to revoke the refugee status.  The act directs that the Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

When seeking to revoke the revocation status of an individual, it is noted that following the guidance of UNHCR, when considering cancellation of refugee status, it is a requirement that the decision-maker be sensitive to the particular circumstances surrounding the application for asylum.

 ‘UNHCR Note on Cancellation of Refugee Status’, paragraph 23,:

When establishing whether there was an “intention to deceive”, decision-makers must be sensitive to the special circumstances which surround applications for asylum. Traumatic experiences, time lapse or the intensity of past events often make it difficult for an applicant to speak freely and provide a full factual account without inconsistencies or confusion. Minor omissions or inaccuracies, vagueness or incorrect statements, which are insubstantial, should not be used as decisive factors undermining an applicant’s credibility, much less deemed sufficient to establish an “intention to deceive”. … In addition, it should be noted that cancellation does not serve as a “punishment” for incorrect statements.’

‘The applicant must have presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore, on balance, capable of being believed …

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 36:

Cancellation may be justified only if the (new) evidence, had it been before the determining authority at the time, could have supported a negative finding with regard to the applicant’s credibility and/or the well-foundedness of his or her fear of persecution for a Convention reason, or if it would have been sufficient to establish the existence of an exclusion ground provided for under the 1951 Convention.’

Due regard must also be given in respect to whether the revocation could be considered as a proportionate action. Any decision to revoke refugee status which could raise grave human rights concerns and be considered as  being  highly prejudicial to the individual, would lead to a potential breach of their human rights protected under the European Convention on Human Rights (ECHR). This too is reflected in the UNCHR.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph  8:

 ‘Whenever a final administrative decision is reopened with a view to its possible invalidation, the general principles of legal certainty and protection of legitimate expectations, or “acquired rights”, need to be reconciled with requirements stemming from the principle of legality … the principle of proportionality requires that the effects of invalidating a flawed decision for the person concerned be taken into consideration. The guarantees and safeguards of procedural fairness also apply.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 9:

‘In summary, irrespective of the reasons for reopening a refugee’s case, the invalidation of refugee status ab initio may be lawful only if there are grounds for cancellation, supported by adequate evidence; if the consequences of cancellation for the individual concerned are clearly not disproportionate and of a seriously prejudicial nature; and if the decision to cancel is made in due observance of the guarantees and safeguards of procedural fairness.’

Brophy Solicitors

22.1.13

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

Asylum children in 'extreme poverty'

Brophy Solicitors would like to take this opportunity to commend the IRC (Irish Refugee Council) on their report into the living conditions of young adults and children in direct provision accommodation within the State.

The report was published today and highlights issues which arise with direct accommodation for asylum seekers. The report found that there were numerous reports of malnutrition amongst young women and expectant mothers.

Within its report the IRC highlighted one particular case from a Mayo accommodation center that once a child reached six months, no more baby or toddler foods would be provided and the children would only be supplied with food “consistent with the rest of the residents”.

Brophy Solicitors

18.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0918/breaking39.html

Shatter defers closure of Galway asylum-seeker centre

We recently reported about the order to close down an asylum-seeker centre in Galway, entitled the Lisbrook Centre (incorrectly referenced in the article as the Lisburn Centre). The Minister for Justice Alan Shatter has deferred this closing order so that he may review the motivations, reports the Irish Times in an article from Thursday, 13^th September.

In earlier articles about the issue, authorities have reported that the centre was ordered to be closed because of a falling number of asylum seekers requiring accommodation in the State, and budgets were tight. However, that does not change the fact that there are still hundreds of asylum seekers depending on direct accommodation facilities such as the Lisbrook Centre while they wait for the determination of their application. The article reports that some have waited for up to four years on the determination of their application, and many have moved up to nine times as they await a decision.

School has just started and many young asylum seekers have begun studying at a local school. They have just settled in and hope to integrate, and the Labour Galway West TD Derek Nolan cited the closure as a “terrible way to treat people.”

Local residents who support the maintenance of the Lisbrook Centre have heavily criticized the closure decision, and they intend to move forward with the planned rally in Galway on Saturday.

Hopefully the Minister reviews the decision to close the centre and quashes it, allowing many refugees who have already suffered unimaginable trials a renewed sense of welcome and security in the State.

14.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0913/1224323959445.html

Language school granted interim injunction against watchdog

An article in the Irish Times from Tuesday, 21^st August 2012 reports that a language school in County Wicklow has been granted “a temporary injunction restraining the National Qualifications Authority of Ireland (NQAI) from striking it off a register of recognised language colleges.” If the college were to lose official accreditation as a language school, there would be severe consequences for incoming students, who could have their visas rendered invalid. To prevent this from happening, Judge McDermott granted an injunction until August 30^th. The NQAI has to review the late completion and implementation of a development plan for the school, to see if it will withdraw recognition or not.

Brophy Solicitors

30.08.12

http://www.irishtimes.com/newspaper/ireland/2012/0821/1224322586164.html

Flexible visa procedures put search for talent first

An article in the Irish Times from Thursday, 23 August discusses the need for flexible visa procedures for non-EU researchers to enter the state. One of the main issues regarding immigration is the concern that foreign nationals will overtake the job market, leaving Irish citizens without work, or that they will become a burden on society, however, this isn’t a concern regarding researchers. Ireland welcomes foreign researchers, believing that they can only benefit the state by bringing their expertise and experience over. Countries will frequently set immigration barriers to prevent non-EU workers from overcrowding the job market, but it is important that researchers are able to easily obtain a visa.

In 1998, France was the first country to pioneer the Scientific Visa, where non-EU researchers could enter the state and work without needing to apply for a work permit, as well as obtaining the right to have family members join them immediately. This attracted a number of researchers into the State. Then, in 2005, the European Third Country Directive mandated that Member States within the Schengen zone adopt the French model. Once a researcher lawfully enters a Schengen area, they can move freely throughout the area. Ireland is not a Schengen country, but the government has signed on to the directive. The article reports that “The scheme targets non-EU researchers employed by the Irish higher education and public research sector as well as companies involved in research, development and innovation.” The Hosting Agreement, in conjunction with the scheme, provides that the researcher has the same rights as a Green Card holder.

The article concludes, “Given the global competition for talent, it is essential to have schemes like the Hosting Agreement in place so we can continue to attract researchers to Ireland.”

Brophy Solicitors

24.08.12

http://www.irishtimes.com/newspaper/sciencetoday/2012/0823/1224322752237.html

Burmese man not entitled to subsidiary protection

The Irish Times on Monday, 20^th August 2012, reported a decision made by the High Court regarding the application for subsidiary protection by a Burmese national. The court refused to review a decision refusing subsidiary protection to the Burmese man. The decision was reached because Mr Justice Cooke determined that his story lacked credibility, and the Court did not believe that he would suffer serious harm if returned to Burma.

The man had initially applied for asylum in Ireland after leaving Burma in 2008 due to religious clashes. He is a member of the Rohingyen ethnic minority, and claimed to have lived in a refugee camp with his uncle in Bangladesh. At the camp, he was offered a job in a religious group whose practices were banned in Bangladesh, and after overhearing a conversation regarding his forced removal to Afghanistan, he fled to Ireland, where he immediately claimed asylum. His claim was unsuccessful, and he proceeded to apply for subsidiary protection. The article reports that his council cited that “this was based on the fact that members of the Rohingyen minority suffered mistreatment, discrimination and hardship, and the danger of his being sold to Afghanistan constituted a threat of ‘serious harm’.” However, his application for subsidiary protection was refused, and he brought the matter before the High Court for a review, stating that “the Minister had not made a finding that the applicant was not a member of the Rohingyen minority. He argued he was therefore obliged to consider the treatment he might receive as a Rohingya if returned to Bangladesh. He said the Minister did not consider this in his refusal to grant subsidiary protection.”

However, Mr Justice Cooke ultimately refused the review, letting the decision rest as is. He ruled that while a member of the Rohingyen minority may face “economic and social difficulties” in Bangladesh, this did not constitute “serious harm” as is necessary to obtain subsidiary protection.

Brophy Solicitors

21.08.12

http://www.irishtimes.com/newspaper/finance/2012/0820/1224322492435.html

Children of non-EU nationals facing huge college fees

An article in the Irish Times on 17^th August reports that children of non-EU nationals are required to pay substantially more in college fees than an Irish national student. This financial burden means that in the first round of CAO offers, many non-EU students will be forced to reject or defer placements. Many of these students have resided in the state for a number of years, but the accumulated time is not sufficient to exempt them from the international student fees.

Children of non-EU nationals are required to register with the GNIB at the age of 16, and often, they are given residency classifications that mislabel them as foreign students or foreign workers, despite many of these students having resided in Ireland for a substantial length of time. They wish to apply for citizenship based on the citizenship of their parents, since without citizenship they do not qualify for the EU tuition rates, but most of the time, their parents have not resided in the state long enough to obtain naturalisation before the student turns 18 and begins applying for college.

Some universities have acknowledged this problem and allow these students to pay EU fees, which are less than non-EU fees but still substantially more than Irish fees. This system effectively bars many bright, capable students from going to colleges where they have well earned their place.

Brophy Solicitors

21.08.12

http://www.irishtimes.com/newspaper/ireland/2012/0817/1224322324547.html

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

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