Assisting our immigration firms can open up the world

An article in the Irish Independent from Thursday, 30^th August, discusses the changing demographic profile in Ireland. Numerous economic and political debates have included the discussion about the “new multi-racial Ireland,” including the potential for “non-Irish nationals to bolster business activity.”

Currently, foreign nationals constitute eleven percent of the nation’s population, and much of this sector is comprised of young, bright college graduates that are eager to begin their own job. The article reports that they have, “on average, progressed to higher levels of education than the Irish population as a whole . . . statistically they are more likely to start their own business. We therefore have within our population a very large group of people who are young, well educated, highly entrepreneurial, and with established networks in foreign countries, but still we do not recognise them as an asset and a wonderful opportunity to expand our international trade.”

Immigrants are valuable trading partners in business because they bring a fresh perspective on the work, as well as new and innovative methodologies and ideas. However, the article admits that issues with language, religion, age, and gender have caused conflicts and difficulties for immigrants attempting to integrate into Irish society and begin working. Not only that, but the very nature of their non-Irish status also presents its own obstacles, which include “a lack of business contracts,  greater difficulty in accessing finance from institutional sources, and an information deficit when it comes to negotiating business regulatory and legal environments.”

The article concludes with recommendations. “What is required in Ireland is targeted intervention promoted through the social networks and media channels favoured by immigrants.” This way, the challenges that are faced by immigrant entrepreneurs can be met and properly faced, so that they may have an easier time establishing their own business and integrating into Irish life. “At a time when Ireland is seeking to build its international trade across the globe, it appears that we have a wonderful resource on our doorstep that is not being proactively utilised.”

Brophy Solicitors

31.08.12

http://www.independent.ie/business/small-business/assisting-our-immigrant-firms-can-open-up-the-world-3214901.html

The right to reside for the non-EEA parent of an EU Child

We are working on a number of applications for residence permission for the  non EEEA parent of an EU child resident in the State.

In one particular case, our client is the father and the sole carer of his EU citizen child since the mother returned to home country,  having previously been employed in Ireland.
We submitted an application to the Minister asserting that our client  acquired a derivative right of residence based on his child’s rights under Article 20 of the Treaty of the Functioning of the EU, relying particularly on the Chen judgment, (as the father was working and financially self sufficient while in employment), and also on the case of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08, where the European Court of Justice found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091, a union child’s right to reside and enter education was independent of that child’s parents status, regardless of whether the parent who is a citizen of the union or not, or has ceased to be a migrant worker in the host state. The child’s rights derived directly from the Treaty. A refusal to allow the primary carer parent to reside during the children’s education would deprive the children of their Treaty rights.

On sufficient resources, the Court of Justice indicated as follows;

“in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

The UK position is that Ibrahim and Teixeira parents in the UK are fully entitled to work.  Under the Social Security (Persons from Abroad) Amendment Regulations 2006, they also have a 'right to reside' for the purpose of claiming benefits.   The right to reside based on the Ibrahim/Teixeira cases is now enshrined in the new Immigration (European Economic Area) (Amendment) Regulations 2012 and is not subject to any conditions such as an inability to work or claim benefits.

The Department of Justice have taken a different approach. In the above mentioned case, it has been determined that the Ibrahim and Teixeira cases do apply to our client’s situation and that a right of residence has been established. However, the Minister has granted our client a restricted stamp 3 residence permission (usually issued to dependents), which prohibits our client from working or accessing welfare. As a result, he has lost his job, and is now unable to support himself and his son, and instructs he will have no option but to return to Pakistan with his son.

We believe that the prohibition against work/access to welfare for the sole carer of an EU child who is established in the education systym is at odds with the Ibrahim and Teixera cases, ( both applicants in those cases were welfare dependent), and therefore in breach of EU law. We will keep you updated on developments in this area of EU Free Movement law.

Brophy Solicitors

28.08.12

Article from UK’s “Asylum Aid” Quarterly report: The Director’s Note

Minister Damian Green has revealed plans to reform the UK’s asylum system, specifically regarding the “culture of disbelief.” Frequently, claims of asylum are denied because the interviewers question the applicant’s credibility, or believe they are outright lying about the treatment they received in their country of origin. This objectivity and bias leads to many poor decisions, reports author Maurice Wren. Asylum Aid, the UK-based asylum assistance organization, is committed to providing quality legal advice to vulnerable asylum-seekers, helping them overcome bureaucratic hurdles and the “culture of disbelief.” Wren calls on the Home Office to show leadership in this matter.

Brophy Solicitors

24.08.12

http://www.asylumaid.org.uk/data/files/publications/194/AA_NewsletterSummer_2012WEB.pdf

BURDENSOME PROCESS FOR REGISTRATION OF ZAMBRANO CASES

We recently posted about a family residing in Saudi Arabia who was granted permission to enter and reside in the State on the basis of their Irish Citizen Child.  On appeal of their first application which was refused for a number of reasons, we challenged the deciding officer for failing to consider the rights of the European Citizen Child in line with the judgement in Zambrano.  Ultimately the family was granted D Type visas to enter the State.  Upon their arrival, immigration officials at Dublin Airport provided the family which consists of a mother, father and three young children with a one month permission to remain.  The family was directed to register their status with the Minister for Justice and Equality and this was done almost immediately through our office.  

The family have commenced life in their new home.  They found accommodation and the children have been enrolled for the 2012/2013 school year.  The father, who is highly qualified in his chosen field, has been provided with the opportunity to work.  He is unable to do so at present without providing evidence of a Stamp 4.  He is also aware of the fact that the delay in the determination of so called ‘Zambrano’ type cases is considerable. 

We understand that there are two systems in place regarding D Type Visas – i.e. the pre-clearance visa is granted which is followed by the requirement of registering your permission to remain in the State by obtaining the appropriate Stamp on one’s passport and a ‘GNIB card.’  We informed the State that we are aware of two cases based on ‘Zambrano’ pending for over 12 months from this office alone. The INIS website states that ‘legally resident non EEA nationals who have entered the State with the intention of residing for more than three months must register with their local immigration registration officers.’   It seems that our clients, like many others such applicants, are subject to further examination after having been granted a long –stay visa.  They have been requested to make an application to the Zambrano Team in the Department of Justice and Equality which could take up to a year or more to decide.  Again, they must submit all of the documentation already forwarded to visa officials twice.  We were also advised that a temporary Stamp 4 while their application is pending is out of the question.  

The INIS website also provides that ‘the onus is on all Non EEA nationals to keep their residency up to date at all times while they are in the State.’  It is infuriating that our clients and similar families would leave their homes and jobs to relocate to Ireland. They make preparations to continue family life in Ireland based on having obtained long-stay visas to enter the State only to find that in fact they cannot avail of employment and are liable to become undocumented for a long period of time.  The State advised us that unfortunately it is the case that a person’s permission might expire during the determination of an application for residency but nothing can be done about this.  We believe that this is a very serious problem. It is unfair that a country would facilitate a person with a long- stay visa to enter the State only to allow that person to endure a painstaking wait to actually register permission to remain. 

If the State continues to operate in this manner, it should at least allow for temporary permission to issue to those who are lawfully resident in the State and risk becoming undocumented while the Minister decides their application.  The UK Home Office have operated such a system for all Zambrano applicants since the judgement itself was delivered.

We would ask the Minister what is the point of carrying our a full assessment of the Irish citizen child’s rights of residence  from outside the State, when on arrival, the full assessment must be carried out again? If the family visa are granted to enter the State,  why are the child’s  parents,  granted a temporary permission to stay as visitors for one month only,  when the residence application may take over one year to determine? How is this family supposed to support the child in the intervening period? Without lawful permission to reside, applicants become vulnerable, restricted in their proper enjoyment of family life and risk huge financial problems.  Zambrano cases are child focused but yet the Department of Justice’s policy is wholly adverse to the best interest of that child.  

Brophy Solicitors

24.08.12

NEW 2 YEAR EXTENSION FOR STUDENTS RESIDING HERE SINCE 2004

The Department of Justice & Equality has announced new arrangements for students who have been continuously resident in the State since before 1 January 2005 (i.e. the student must have received a GNIB card during or before 2004 and for each year thereafter). These new arrangements will allow eligible students to reside in Ireland for a further period of 2 years on specified conditions. In addition, at the conclusion of the two year probationary period those students will be eligible to apply for a more permanent status on condition that certain obligations have been fulfilled.

Any non-EEA national student who first registered their residence in Ireland as student on or before 31 December 2004 and who commenced their studies in Ireland on or before 31 December 2004 may apply for the special probationary extension.

Non-EEA Students who are no longer resident in the State will not be eligible to avail of this student probationary extension.

In order for such a student to be granted the extension they must have maintained their residence as a student from first registration until the date of application for the Student Probationary Extension. Any student not currently registered and with a significant gap in registration will not be eligible to apply for the extension.

Students must also furnish one P60 certificate that has been acquired within the previous three years.

The following residency conditions will apply to the probationary period –

·        The eligible student will not be required to be registered or enrolled in an academic course of study.

·        The eligible student will be permitted to work for a maximum period of 40 hours per week without being required to hold a work permit.

·        The eligible student will be required to maintain private medical insurance.

·        The eligible student will be required to reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.)

·        The eligible student will not be permitted to apply for reunification with family members who are resident outside the State.

·        The eligible student must be of good character and must demonstrate that they are law abiding.

At the conclusion of the two year probationary period the eligible students can apply for a Stamp 4 permission to reside in the State.

Brophy Solicitors welcomes these new arrangements and is available to assist potential applicants with any queries they may have regarding the scheme. 

Brophy Solicitors

24.08.12

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

Immigration Backlog: New Warning from watchdog

The UK Border Agency is facing a growing crisis as the number of foreign nationals remaining in the State after their visas expires has risen to 150,000, reports an article from BBC news. The article reports that there is “no clear strategy” for how to prevent this from becoming a backlog, further increasing the chaos and inefficiency of the current system.

Many of these now-undocumented foreigners are students who have completed their degrees, and their permission to remain in the State as a student has expired. Some have tried to apply for permission to continue residing in the State, but without a significant tie to the UK, like a highly skilled job or a spouse, these applications are refused. Once their permission to remain has expired, they must exit the State or face a deportation order. Of these migrants who have been told to leave, the Border Agency has no way to tell how many have actually left. This creates a problem in the Border Agency’s eyes because that means that there is a growing population of undocumented migrants residing in the state. There is currently no scheme in place to hasten their removal.

The article reports that poor management leads to long queues at the airport as well as a backlog of work. This causes the immigration system to run even more inefficiently.

Brophy Solicitors

02.08.12

http://www.bbc.co.uk/news/uk-18715036

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

Migrants Petition for Regularisation

A petition signed by 4,000 members of the public landed on the desk of Tom Cooney, special advisor to Minister for Justice Alan Shatter, reports an article in the Irish Times. The petition was organised by the members of the Justice for the Undocumented campaign, which seeks to illuminate the plight of undocumented immigrants in Ireland. The petition had a specific mission, to seek support for the Migrant Rights Centre Ireland, which “aims to allow undocumented migrants living in Ireland to enter an earned regularisation scheme which would require undocumented people to work over a period of time, pay taxes and meet other criteria before being allowed residency.” This scheme is crucial to give undocumented migrants a voice in Ireland. It is not a hand-out, and it is not amnesty, it is simply recognising the presence of undocumented migrants, allowing them to step out of the shadows, and stop living in constant fear. For most undocumented workers, living illegally in the State is better than the alternative, which is to return home lawfully and risk being unable to support their families. The petition aimed to encourage the state to commence searching for a solution.

Brophy Solicitors

31.07.12

http://www.irishtimes.com/newspaper/breaking/2012/0718/breaking29.html