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

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

SHATTER ANOUNCES TWO INIATIVES: IMMIGRANT INVESTOR PROGRAMME AND START-UP ENTREPENEUR SCHEME

The Minister for Justice, Equality & Defence, Mr. Alan Shatter, TD, recently the introduction of two new immigration initiatives aimed at facilitating (non EEA) migrant entrepreneurs and investors who, in return for permission to reside in the State, are prepared to invest here for the purpose of saving or creating jobs.

The Immigrant Investor Programme:

The sort of investments envisaged will include a specially created low interest Government Bond, capital investment in an Irish business, endowments in the cultural, sporting educational or health areas will also be considered.The level and duration of financial commitment required from the Investor will depend on the nature of the investment but will generally range from €400,000 for endowment-related investments to €2 million in the new Immigrant Investor low-interest bearing Government Bond to be devised by NTMA in conjunction with the Immigration authorities. The level of investment in business entities where jobs are being created or saved will generally be €1 million and the Department will be guided by and reliant upon the advice and expertise of IDA Ireland and Enterprise Ireland in assessing individual proposals.

Approved participants in the Investor Programmes and their immediate family members will be allowed enter the State on multi-entry visas and to remain here for a defined period. Ordinarily this will be for a period of 5 years - reviewable after 2 years.

The Start-up Entrepreneur Programme:

The Start-up Entrepreneur Programme provides that migrants with a good business idea in the innovation economy and funding of €70k can be given residency in this State for the purposes of developing their business (this compares with a previous minimum funding requirement of €300k). No initial job creation targets will be set as it is recognised that such businesses can take some time to get off the ground. Projects will be evaluated by an Evaluation Committee with State Agencies playing a key role in "picking winners" or those who demonstrate a good idea or the potential to be a winner.The business proposal must have a strong innovation component.The applicant must not be a drain on public funds.All applications for both programmes will be considered by an Evaluation Committee comprised of representatives of IDA Ireland, Enterprise Ireland, the following Government Departments; Finance; Jobs, Enterprise and Innovation; Foreign Affairs and Trade; Health; other Government Departments as the need arises and the Minister’s own Department of Justice. Applicants must be of good character and be able to support themselves while in Ireland. Applicants will be required to attest to their bona fides on affidavit sworn here.

An Annual Report will be published on the operation of the Programmes and they will also be reviewed to ensure that they continue to meet their objectives. The Programmes offer no special access to Irish citizenship. Beneficiaries will be subject to the same rules as other migrants in that regard – i.e. generally residence in the State for at least 5 years.

Next Steps

The Minister indicated that he hoped to have the new schemes formally launched by mid March when the detailed rules governing the Programmes which are being worked upon by officials in the Department of Justice will be published. He said no new legislation is required as the pre-existing legislative powers of Ministerial discretion are sufficient to enable the programmes to operate in a flexible manner.

Irene Carney

irene@brophysolicitors.ie

01.02.12

EU TREATY RIGHTS AND SHAM MARRAIGES

 MINISTER SHATTER'S RECENT STATEMENT ON SHAM MARRAIGES

The INIS press release of the 9^th June 2011, entitled “Sham marriages leading to abuse of free movement rights ”  summarizes Minister Shatter’s recent speech to the Justice and Home Affairs Council in Luxemburg.  The Minister informed the Council of the “highly irregular” patterns of marriage. He indicated that his official were working on drafting amendments to the Immigration and Residence Bill to deal with the problem of “marriage of convenience”, and that this Bill would be re introduced shortly.

We very much welcome the fact that that the Minister proposes to take action against the fraudulent industry surrounding the EU Treaty Rights process.  We would agree with his position that the problem is significant and requires intervention by the State in the form of appropriate legislation. The current position is completely unsatisfactory in that it is not currently an offence to enter a fraudulent marriage for immigration purposes. This leaves the field wide open for abuse of the process, and frankly it is of no surprise that a fraudulent industry has flourished.

Since the case of Izmailovich v the Commissioner of an Garda Siochana, delivered on the 31^st January 2011, the Government is fully on notice of this legal lacuna of the “marriage of convenience”. Mr Justice Hogan, who presided over the Izmailovich case, indicated in his judgement that he had no option but to find that the Gardai are not empowered to prevent the solemnisation of marriage on the grounds that they suspect, even with good reason, that the marriage is one of convenience because under current law the marriage would be valid. He summed up the position succinctly, and went so far as to call on the legislature to resolve the situation;

“I quiet appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory then it is of course in principle open to the Oireachtas and if needs be the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult once and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and again if needs be the Union legislature can resolve”

We too call on the Minister to take action in this area, as it is to the great disservice and frustration of all genuine applicants in the EU Treaty Rights process that the fraud is permitted to continue.

Keeping you up to date on Zambrano

MINISTER SHATTER’S RESPONSE TO ZAMBRANO

The recently appointed Minister for Justice, Equality and Defence, Mr Alan Shatter, has released a statement in response to the ground breaking judgement by the European Court of Justice  in Ruiz Zambrano v Office National De L'Emploi –  (Case C-34/0). 

The Minister has confirmed that the Department of Justice will examine all cases before the courts where parents of Irish citizen children have challenged deportation orders against them. He has confirmed that the Department will also commence an “urgent review” of all pending applications to revoke deportation orders where the Zambrano judgement may be relevant. The Minister has even specifically referred to cases where deportation orders have already been carried out.

Mr Shatter is further quoted in The Irish Times today as follows;

“Where there is an intact and real relationship there is very little doubt the child is entitled to both parents living with them in the State”.

It thus appears now that the Department face the task of assessing hundreds of cases whereby non EEA parents of Irish citizens have been wrongfully refused the right to live and work in the State.  From the comments of Mr Shatter, it seems that many of these decisions may be quashed by the Department of Justice and permission granted without the need for High Court litigation. This is a very positive and essential step the Minister has taken in order to avoid a flood of High Court Judicial Reviews in respect of each individual case.

In light of this statement, Brophy Solicitors would strongly recommend that all non EEA parents of Irish children who are currently residing in the State without lawful permission, or who have a restricted residency permission, or who have been refused visa to enter the State, or already been deported,  immediately submit an application to the Department of Justice for consideration on the basis of the Zambrano judgement. Please contact us if you have any questions in this regard. 

Karen Berkeley, Brophy Solicitors 

22.03.11