DELAYS IN DECISION-MAKING IN IMMIGRATION CASES

We were recently instructed by a very vulnerable single mother with significant mental health difficulties. She had previously been granted stamp 4 permission to remain in the State and we were instructed to assist with an application for renewal of that permission pursuant to section 47 of the Immigration Act 2004.

At the time we put in the application we had not yet received a medical report or medical records to substantiate our client’s significant mental health difficulties. Rather we submitted the application on a provisional basis relying on personal statements from the applicant and her daughter substantiating the difficulties she had had with serious mental illness and detailing the difficulties that she would face should she be expected to return to her country of origin. We had prepared detailed submissions to send to the Department setting out our arguments with respect of the mental health position and we were awaiting a medical report from our client’s psychiatrist before submitting these further submissions.

To our surprise and to our client’s enormous relief, before we had even received the medical report and records and finalised our further submissions, our client was granted an extension of her leave until 2017. Our client is extremely happy to have had her application determined so quickly. In fact our original letter was dated the 10^th of September 2014 and a positive decision was received 15 days later.

This is obviously a very positive development for our client especially given her vulnerability however it shows the considerable inconsistency in the timeframes within which applications are being dealt with by the Department.

While working on this case, we have also been in correspondence with the Department in relation to a case where the applicant has had an application for leave to remain pending since February 2009. We are now at the point of issuing High Court proceedings to compel the Department to make a decision. It is a little confusing that that type of application must wait five years to be determined while a renewal application can take just 15 days even when in the latter, all the information has not yet been provided to the Department.

We hope that the decision making process will become consistent and streamlined and more efficient in coming months. At present, it is unpredictable and difficult for applicants some of whom wait extremely long periods for a decision on vital matters such as their ability to remain lawfully in the State

Rebecca Keatinge
Brophy Solicitors

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

Amendments to the Immigration Act 2004

NEW LAW IN RESPECT OF OBLIGATION ON NON NATIONALS TO PRODUCE IDENTITY DOCUMENTS ON DEMAND

The Civil Law (Miscellaneous Provisions) Act, 2011 was signed into law by the President on 3 August, 2011. The Act contains amendments to the Immigration Act, 2004  which will positively impact non nationals resident in the State, and particularly those non nationals resident pursuant to the EU Free Movement laws.

The changes derive from the recent High Court judgement of  Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008) in which it was held that Section 12 of the Immigration Act 2004 was unconstitutional. This Section had placed an obligation on all non nationals in the State to produce on demand a valid passport or equivalent document or GNIB Registration Certificate, and refusal to do so without satisfactory explanation was deemed an offence punishable by up to a term of 12 months imprisonment. This Section was the basis upon which many non nationals have been detained in Irish prisons. Many detainees have remained in detention for prolonged periods of time because they could not produce their passport/identity documents and therefore were regarded as on going offenders pursuant to Section 12.

Section 34 of The Civil Law (Miscellaneous Provisions) Act, 2011 contains amendments of Sections 12  (and section 11) of the Immigration Act 2004 which contain particular safeguards in order to render the Act in line with the Constitution. For example, a non-national may now be required to produce on demand “for the purposes of establishing that his or her presence in the State is not in contravention of section 5” a valid passport or other equivalent document establishing his or her identity. Failure to comply with this requirement is an offence, but a defence is clearly outlined as follows;

“In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.”

The section does not apply to persons under 16 years of age. However, unlike the old section 12, there is no longer an exemption for non-nationals born in Ireland.

A further significant change introduced by these amendments is the exclusion from the ambit of Section 11 and 12 of EEA nationals and their dependents exercising Treaty Rights of free movement.

Many cases we are aware of the non nationals are not in possession of these documents through no fault of their own, for example when the documents have become mislaid by the relevant State bodies, as can often happen. We therefore very much welcome the new restrictions on the arrest and detention of non nationals who fail to provide their identity documents on demand. We also welcome the acknowledgement of the rights of the family members of EU nationals to reside in the State on the same basis as their EU family member and Irish citizens alike.

Brophy Solicitors
08.08.11