Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

Naturalization Delay

We continue to receive a large number of queries from clients regarding the on going delays in the Citizenship Section. It is very appararent that many applications submitted in 2007 continue to be undetermined. Amongst our clients in this catagory are a number of doctors, and a client working in the financial services. There is no apparent reason for the delay on the facts of their cases. Our clients are frustrated, particularly as they feel they have given a lot to this State through their professional services. 

The amount of new queries recently received on this issue warants a further posting on our blog. We think that it might be helpful for those who are stuck in this waiting game to understand the caselaw coming from the superior courts, which greatly influences the Naturalization processs.

In most applications before the Minister for Justice, a processing period of 6- 12 months would be regarded as reasonable, while a period of over 18 months would be deemed to be unreasonable and in breach of the applicant's rights. However, during 2009 and 2010, a number of cases before the High Court held that the Minister was not restricted in the time period for processing Naturalization applications because the granting of Citizenship is a special privilege granted by the State, and not comparable to other applications for residency. Thus, the applicants who took the delay cases during that period were unsuccessful. (See cases such as Nawaz v Minister for Justice, 19th July 2009, Bepo v Minister for Justice, 18th June 2009, Tabi v Minister for Justice 16th April 2010, Jiad v Minister for Justice 19th May 2010 and Abuissa v Minister for Justice,1st July 2010 ).

Since then, the Citizenship Section of the Department of Justice has relied on these High Court judgments to support their position that they are permitted to allow extremely long delays in the determinations of many applications for Naturalization. Unfortunately, Immigration lawyers were hesitant to challenge the delays by way of High Court litigation because of the risks posed to their clients becuase of these same unsuccessful High Court judgements in 2009/2010.

On the 16^th December 2011, Mr. Justice Kearns of the Supreme Court delivered a judgment which changed this position – the case is Dana Salman v Minister for Justice and Equality. The case involved a hearing to establish liability for costs in respect of one of the previous High Court Naturalization delay cases. The Minister’s delay in determining Mr Salman’s application for naturalization was 3 years and 9 months at the time of issuing of High Court proceedings. Mr. Justice Kearns found that there was no evidence before the Supreme Court of any system in place for dealing fairly with applications for certificates of naturalisation. In particular, the Minister did not indicate any specific reasons for the delay and refused to explain the extended period of delay past the average time put forward by the department (24 months). Mr. Justice Kearns held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded. (Please see our previous blog post of December 2011to read further about this judgement).

Since the Salman judgement, a number of new Naturalization delay cases have recently been issued in the High Court, where the delay is in the region of the Salman case – 3 and ½ years. The High Court is granting permission to take a full case against the Department of Justice where there is substantial delay of this kind. It remains to be seen if one of these more recent cases will proceed to full hearing, and perhaps set a new precedent in light of the Salman case.

We will keep updating you as further developements occur.

Brophy Solicitors

CRISIS IN EAST AFRICA

Last week we met with a young Somali client who told us that six members of her family, including her mother and five young siblings, have recently arrived in Dadaab refugee camp in northern Kenya. Our client explained the dire situation of insecurity, violence and malnourishment her family had fled from in Somalia and the ongoing challenge to survive even in the relative safety of the camp. She had not heard from her family for over three years until she located them in Dadaab.

This disturbing story has brought home the widespread suffering arising from the crisis in East Africa. We have all seen arresting images over recent days and the famine appeal donations are fortunately well under way.

What is often not considered despite the striking images of vast refugee camps is the so-called ‘refugee burden’. The reality is that the refugee population in the developing world is far greater than that in the developed world. It is countries like Kenya that are hosting huge numbers of desperate refugees relative to the small numbers that come to countries like Ireland (in 2010, we were hosting a total of around 9,000 refugees while Kenya was hosting over 400,000). There are often worrying misperceptions about the numbers of refugees arriving in Ireland and other European countries. In June 2011, UNHCR estimated that four fifths of the world’s refugees are being hosted by developing countries, such as Kenya and Pakistan.

For our own client, she has now been residing in Ireland for over three years, waiting for a decision on her case. As a young lone female Somali, we would argue that there is currently no prospect of her returning safely to her country, particularly in light of the recent decision of the ECJ in Sufi & Elmi v UK. Unfortunately, it is likely our client will wait several more years for a decision from the Department of Justice and this may be a negative decision. In the meantime, she must try to support and stay in contact with her family and hope for a more secure future for them all. While this client has been waiting three years, at lease one of our Somali clients has been waiting since mid 2005 for a determination of her application for family reunification. We would call on the Minister to prioritise Somali cases given the desperate humanitarian situation and the dire impact of these delays on applicants and their families.  

Brophy Solicitors

18.08.11