High Court finds in favour of Irish citizen married couple fighting for a right of residence in the State for their dependant parents

We are delighted (and relieved!) to announce the successful outcome in the case of O’Leary and Lemiere v The Minister for Justice. You may recall our previous blog posting on this case. 

This morning, Mr Justice Cooke delivered judgement approving our clients’ application to set aside the Minster for Justice’s decision to refuse to grant permission to reside for their dependant elderly parents.  He confirmed the Minister’s decision to refuse their application for permission to reside as a disproportionate decision not based on a fair and reasonable assessment on the facts of the case.

Mr Justice Cooke dismissed the State’s argument that the applicants’ case did not trigger the protections of Article 41 of the Constitution. The High Court confirmed that the applicants, as adult Irish citizens and their dependant elderly parents, did constitute a family within the meaning of Article 41 Constitution, and as such invoked the protections envisaged by that Article. He confirmed Mr Justice Hogan’s previous findings that these protections include the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified in the interests of the individual family members or necessary in the over riding public interest. 

For the purposes of assessing the rights deriving from Article 41, Mr Justice Cooke confirmed that what is important is the context of the family relationship, as opposed to how that relationship is defined. In other words, the reality of the family situation is to be assessed.

Having accepted the O’Learys and the Lemieres constituted a family within the meaning of Article 41 of the Constitution, Mr Justice Cooke proceeded to the “central issue ” of the case - whether the reasons given by the Minister to refuse the applicants permission to reside constituted a lawful exercise of the Minister’s discretion pursuant to Section 4 (7) of the Immigration Act 2004, or whether the decision was illegal in that it was unreasonable and disproportionate or inadequately explained.

On a thorough review of the submissions made in support of the application, and the Minister’s responses, Mr Justice Cooke concluded as follows;

“It is difficult to avoid the impression given by the cumulative effect of the reasons as stated, that the decision made was more concerned with finding and articulating grounds which would support a refusal rather that seeking to give an overall assessment of the merits of the application in a balances and objective manner.”

Mr Justice Cooke assessed individually the two principle grounds for refusal of the application – (1) that there is no express provision in Irish legislation for an Irish national to apply on behalf of a non EU national who is their dependant to join them in the State, and (2) that there was a lack of good faith by the applicants in their dealings with the Department.  In dismissing both grounds for refusal, Mr Justice Cooke confirmed that it is manifestly the case that the Minister has the power in his discretion to extend any permission to be in the State granted to a non national pursuant to Section 4 of the Immigration Act 2004. He also confirmed that it was the Court’s judgment that it was highly questionable that the motives attributed to the applicants in the decision were consistent with the relevant material, describing the O’Learys as open and candid in their efforts to find a way of having the grandparents to remain in Ireland.

For these reasons, Mr Justice Cooke found that the Minister’s decision must be quashed, as it was based on justifications erroneous in law.

Mr Justice Cooke then added some further comments of note in respect of the cental issue of dependency: he found that the Minister was incorrect to assess dependency only in respect of financial grounds, when dependency had been argued on a much broader context. Furthermore, he found that the Minister was incorrect to find that financial dependency did not exist, as the financial assistance went beyond what is extremely welcome but non-essential support. Mr Justice Cooke indicated that it was the judgement of the Court that the Minister had applied an unbalanced approach to isolate the financial aspect of dependency and find dependency only to be relevant in cases of outright destitution.

We believe that this case has established important new rights for Irish citizens pursuant to Article 41 of the Constitution. In particular, it has established that adult Irish citizens have rights to have their dependant and financially self sufficient (non EEA) family members reside with them in the State, and while these rights are not absolute, they are strong enough to place a weighty obligation on the State to objectively justify any infringement of those rights.

We wish to congratulate the O’Leary and Lemiere family on their successful outcome today.

Brophy Solicitors
24.02.12

ONE TO WATCH! PRELIMINARY REFERENCE ON THE RESIDENCE RIGHTS OF PARENTS

The Upper Tribunal in the UK made a preliminary reference last week to the Court of Justice of the European Union on the rights of residence of parents with children over 21 years who they are caring for. 

In Alarape and anr (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 00413(IAC) (AIRE Centre intervening)  the Tribunal held that the term "child" in Article 12 of Regulation (EEC No.1612/68  (now Article 10 Regulation (EU) No. 492/2011) which guarantees a right of access to education - should be interpreted to include "stepchild".

The Tribunal also referred a series of questions to the Court of Justice of the European Union, including:

1.     For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?  

2.     If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

3.     In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

4.     In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

5.     Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence) and being issued with a residence card under Article 19 of the same Directive?

While it is likely to be some time before the Court provides guidance on the above questions, such clarification will be helpful in ascertaining to what extent applicants can derive a right of residence arising from their relationship with their children, irrespective of the fact that they are no longer minor children. Our current experience is that the Department is reluctant to take into account a relationship between a parent and an adult child, even where emotional ties and dependencies are evidenced. A parent, relying on EU Treaty Rights, will ordinarily need to advance independent grounds before the Department to be successful in retaining their right to reside.

We will keep you updated on the progress of this reference and look forward to hearing any comments you might have.

Brophy Solicitors

18.10.11

Family Reunion applications: An update

UPDATE ON FAMILY REUNION APPLICATIONS

There has been a recent change to the form sent out by the Office of the Refugee Applications Commissioner (ORAC) to be completed by those applying for family reunion as a refugee.

The previous form was a reasonably short document requesting information regarding the family relationships and the circumstances of the family members. The form also required details of the refugee’s financial and accommodation situation in Ireland.

The new form now being sent out by ORAC is considerably longer. It requests specifics of any dependency between the refugee and the applicants. The form also requests relatively detailed information on the financial circumstances of the applicants, including how they are financially supported, whether they are working, and whether they are capable of supporting themselves financially.

What is particularly noticeable is the updated list of documents now requested by ORAC to support the application. Many of the new documents listed refer to minor applicants and required documents include for example evidence of schooling, evidence of legal guardianship, original death certificates if the minor child’s parents are deceased. The list stretches to 37 documents that may be requested in total as compared to the 10 documents previously requested on the old form.

In some respects the new form may be welcomed. We have often had clients complete the old form and then receive a letter from ORAC listing a huge number of further questions therefore delaying the processing of the application. However, we have ongoing concerns about the level of supporting documentation that the refugee and the applicant(s) are expected to provide to support the application. These documents are often simply unobtainable particularly for Somali clients and there is often little or no consideration given to reasonable explanations of why such documents may not be available to applicants.

We would highlight that any consideration in respect of dependency in such applications must take into account the recent decision of Mr Justice Hogan in the case of RX, QMA and CXN v Minister for Justice Equality and Law Reform, delivered on the 10^th December 2010.  Mr Justice Hogan emphasized that the word “dependency” within the meaning of Section 18 of the Refugee Act refers to dependency in fact - i.e. that dependency existed when the subjects of the family reunification application depended for financial survival on the remittances transmitted by the Applicant, even though she in turn was herself dependant on social welfare payments in this State. Mr Justice Hogan further emphasized that whether the Applicant could maintain the family members in Ireland on arrival is not the test that Section 18 (4) posits.

On a general note, a major ongoing concern for us in relation to family reunion cases are the extensive delays our clients experience in having the applications determined. We were recently instructed by a client who has been waiting since 2007 for his application to be determined, and since this time, his family members have become separated and one of them has disappeared. We are fortunate to have now been able to move this case along for the client but there has been no explanation or apology for the delay to date.

As always, we welcome any queries or comments you may have on this issue.

Brophy Solicitors, 03.08.11

Reflections on Zambrano

ATTENDANCE AT SEMINAR ON THE ZAMBRANO DECISION AND ITS IMPACT ON CONSTITUTIONAL LAW, EU LAW AND IMMIGRATION LAW IN IRELAND

Yesterday evening I attended a seminar on the recent Zambrano judgement, presented by Dr. Stephen Carruthers, Dr. Elaine Fahey and Dr. Fergus Ryan at the Dublin Institute of Technology. 

The speakers addressed some of the many queries that the Zambrano judgement has raised. At the outset, it was acknowledged by all speakers that the judgement is certainly a landmark decision in EU law, and was referred to as being of as much significance as the seminal “Van Gen Den Loos” judgement of 1963, which established the concept of Direct Effect in EU Law.

The speakers discussed the most major development progressed in Zambrano, which is that the Court of Justice has established a source of EU legal rights independent of the “Free Movement” requirement which until now has been a fundamental prerequisite. There followed an interesting discussion on what the parameters of this progressive step might be, which are of course difficult to ascertain at this time.

The speakers pointed out a number of interesting points concerning the Zambrano judgement.

It is set out in a short nine page judgement, and it was suggested that the implication of this being that there may have been much dissent amongst the judges who are required to reach a unanimous determination.

It was also pointed out that Advocate General Sharpstens analysis and conclusions regarding reverse discrimination were avoided by the ECJ and thus we are left with more question s than answers – the obvious question being why can all Irish citizens not now also rely on their Union citizenship rights, and claim all entitlements deriving there from. From an Irish Immigration point of view, such a position would lead to huge changes as currently, Irish citizens' rights in respect of family unity in particular are quite restrictive compared to those protections afforded by Directive 2004/38 to EU citizens of other Member States residing in Ireland.

The speakers also pointed out the unusual sequence of the ECJ’s reasoning in coming to this point of view – in the Metock case, the ECJ deviated from its own previous judgement in Akrich and confirmed that Union citizens family members have entitlements to join the Union Citizen without having to first reside in another Member State. This judgement confirmed the position that Union citizens must exercise free movement in order to trigger their EU Treaty Rights. Furthermore, it was pointed out that the McCarty case should be watched with interest, as the ECJ have been referred queries of the status of dual nationals. It is expected that this might be the next big judgement, which might shed light on many of the questions that Zambrano has left unanswered.

It was pointed out that the judges refrained from assessing the human rights aspects to the case, and particularly the best interest of the child principles and comparisons were made to the recent case of ZH (Tanzania) v Secretary of State for the Home Department.

When discussion was opened to the floor, queries were posed regarding the retrospective aspect of the decision, the expansiveness of the family members that the principles  could be applied to, the importance of the dependency factor, the importance of financial self sufficiency, and so on. 

The speakers gave interesting perspectives on the changes and were most engaging and passionate on the subject. However, ultimately the questions cannot be definitively answered, and it remains to be seen what will happen next… We will be posting any new developments here and welcome any comments or questions you might have.

Karen Berkeley, Brophy Solicitors