Immigrant Investor Programme Update

The Irish Immigration Blog

Individuals considering making an application under the Immigrant Investor Programme should be appraised of the current guidelines that apply a number of new criteria that must be satisfied for an application to be successful.

The most significant development is that investors must establish that they have a minimum net worth of €2 million. There is a specific net asset section on the application form that must be completed and applicants must also provide an explanation of all activities for the previous 12 months period indicating their income, investments and loans. It is clear that the Department requires a comprehensive picture of the applicant’s financial position over the last twelve month period so that they can be satisfied that the applicant has legally acquired a minimum net worth of €2 million. 

The eligible investments available to any applicant have not changed considerably and include one of six forms:- Immigrant Investor Bond, Enterprise Investment, Investment Fund, Real Estate Investment Trusts, Mixed Investment or Endowment. The current guidelines provide clarification and detail in relation to the various categories of acceptable investment. 

The same requirements still apply with respect to provision of evidence of funds for investment and evidence of the source of those funds. The Department will consider the following sources of funds:- business and investment activities, Deed of Sale, inheritance and divorce settlements. 

Evidence that the funds can be transferred to an Irish financial institution must be provided and there is now explicit reference in the guidelines to jurisdictions that have controls over the transfer of currency. Our own experience is that such controls may present an obstacle to certain applicants. 

Finally the good character requirement continues to apply. Any applicant as well as their nominated family members who are over the 16 years old must submit a statement of character from the police authorities of each country in which they have resided for six months during the 10 year period prior to making the application. 

The requirement that the individual evidence that they are of €2 million net worth is likely to limit the number of applicants eligible to apply under the scheme. Our own experience is that the Start Up Entrepreneurship Programme (STEP) is a more attractive alternative, requiring a minimum investment of €50,000. It remains to be seen whether a significant number foreign investors will avail of the investor scheme in Ireland when other countries offer comparable schemes that do not have such high financial thresholds.

Rebecca Keatinge

Brophy Solicitors

APPLICATIONS FOR DE FACTO PERMISSION IN IRELAND

Since 21st March 2014, INIS have declined to accept applications for De Facto Partnership Immigration Permission in circumstances where the Applicant is present in the State on a C Visit Visa or on foot of the Irish Short Stay Visa Waiver Programme. INIS further clarify on their website that they will not accept applications from persons who are unlawfully present in the State and/or are in the asylum/protection streams at the time of making the de facto application. 

We have several clients who submitted applications while they were lawfully present in the State but since their applications were submitted, their permission has expired or lapsed. We therefore recently sought clarification from INIS as to whether such applications will be processed, despite the current position of the applicant as someone not technically lawfully present in the State. 

INIS have now clarified that applications for a De Facto Relationship Immigration Permission received from non EEA nationals resident in the State who were legally present in the State at the time of application will continue to have their applications processed even in instances where they allow their existing registration or immigration permission to expire. 

In addition, INIS provided important clarification on the position of non visa required nationals. INIS confirmed that applications from non visa required nationals will be accepted provided that on the date the application is received the person concerned has a landing stamp endorsed on their passport permitting lawful entry to the State which is usually afforded for up to 90 days under visitor conditions. 

These changes and our own experience of dealing with many of these applications confirm an increasingly restrictive approach of INIS to De Facto applications. It is our own position that cases must be considered and determined on a case by case basis and absolute restrictions on certain individuals making the application, for example those in the asylum or protection streams, are legally questionable.

Brophy Solicitors

EU TREATY RIGHTS: THE SURINDER SINGH ROUTE AND THE EFFECT OF O V THE NETHERLANDS

On the 9th of July 2012, the UK Home Office implemented major changes to the rules regarding family migration. These new rules make it much more difficult for British nationals to bring their non-EEA family members into the UK. The documentary requirements are cumbersome. The introduction of a £18,000 minimum income has caused a significant barrier with reports suggesting that 47% of the British population would not meet the minimum threshold. Further issues with the minimum income level arise due to the fact that the non-EEA nationals earning potential is not taken into account whatsoever. The rules regarding elderly dependant relatives make it almost impossible to unite with them. Where there is no cross border element to invoke European Union law, these tough and largely insurmountable domestic laws apply.

Paradoxically, if a UK citizen moved to Ireland for the purposes of economic activities, and wished to reunite with a non-EEA family member, EU free movement law applies, making the whole process much simpler and less cumbersome. An application for an EU Family residence card does not require excessive documentary evidence, and there is no minimum income level.

Basically, a case of reverse discrimination has been created between domestic Immigration law and the EU Free movement law. It is clearly more beneficial in terms of family reunification to be a UK citizen in Ireland, or an Irish citizen in the UK.

There is, however, an exception to this general rule.

The Case of Surinder Singh

The Court of Justice judgement in the case of Surinder Singh provides a means whereby EU Free Movement law can be applied for a Union citizen within their own member state. The basic principle derived from Surinder Singh states that the right for a Union citizen to move from one member state to another member state includes the right to return. If by returning, the Union citizen would not be able to take advantage of the more lenient free movement laws, it would be disadvantageous for them to return home. As such, the principle emerged that when the Union citizen returns to their home member state after exercising EU treaty rights in another member state, they are construed as exercising the rights of free movement under EU law. So, on their return, family reunification must be assessed under EU free movement law rather than domestic law.

The Effect of O V The Netherlands

The Surinder Singh principle was further developed by the Grand Chamber of the Court of the European Union in the case of O V The Netherlands. Despite not referring directly to the case, O V the Netherlands provides new, binding guidance on the Surinder Singh principle. Ultimately, O V the Netherlands set out that in order to take advantage of the Surinder Singh principle:

· A 3 month residence period is necessary;

· Holidaying or weekend visits do not qualify for the purposes of calculating the residence period;

· Any union citizen, not just workers or the self employed may benefit from the principle;

· During the required period of residence family life must have been ‘created or strengthened’;

· Abuse of the principle will not be allowed or tolerated.

The Reality
This seeming ‘get out of jail’ card isn’t perfect. The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended) – and it requires that the Union citizen’s “centre of life” has transferred to the other member State. For many people moving their whole life so as to invoke the Surinder Singh route just isn’t an option when considering jobs, families, mortgages, etc.

In Ireland, we do not have specific statutory measures, or even stated policy, on the Surinder Singh principle. From our experience here at Brophy Solicitors; where we are working on a number of these cases, the Department has accepted and applied the principle where evidence has been provided that the Union citizen genuinely exercised their EU treaty tights in the other member state.

Brophy Solicitors

FAMILY REUNIFICATION AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 of the European Convention on Human Rights provides that:

“Everyone has the right to respect for his private and family life, his home and his correspondence”.

In regards to family reunification applications, the respect for family life referred to in article 8 becomes of particular importance.

Over the course of its history, the European Court of Human Rights has established a substantial body of case law in regards to both the right to respect for family life individually and its impact on the assessment of unsuccessful family reunification applications. Importantly, the ‘family’ has been established as an autonomous concept, meaning the European Court of Human Rights is not bound by the national courts assessment of what constitutes as a family.

That is not to say that the courts handling of unsuccessful family reunification applications and article 8 is completely unfettered. In its assessment of the individual’s rights under Article 8, the court must find a balance with the host states immigration policies. Usually a wide margin of appreciation is afforded to the state. This reflects the wider policy that it is primarily for the state to ensure that the individual’s rights are upheld. In her article, ‘Family reunification in EU law and under the ECHR’ Nuala Mole points out that the key question in assessing the interplay of family reunification and Article 8 is “whether the state has overstepped this margin of appreciation in the particular case before it and so failed to respect this key right.”

In general, recognition must be given to the well established fact that the ECHR does not guarantee to individuals a choice of country of residence.

Taking a similar interpretation to its stance on family regularisation, the ECHR will generally find that a spouse resident in Europe, whose partner is not within the union, may be required to relocate as opposed to have their spouse join them, unless they show that there are “serious obstacles” preventing relocation. This will not usually constitute a breach of Article 8 as it is not preventing the couple continuing their ‘family life’, even if they are required to do so in another country.

Nuala Mole’s assessment is particularly relevant, “The Court also attaches considerable weight to the fact that the immigration difficulties, which a family is now encountering, were ascertainable at the time of the marriage, and that the couple should not therefore have had an expectation that they would be able to live together in the host country”.

In the case where it is a child who has been left behind, as often happens when families migrate, the ECHR have generally taken the same hard line approach that there is no Article 8 violation where it is possible for the family to carry out family life in their country of origin. However, sometimes a much more favourable approach may be taken. Where circumstances dictate that a different path is necessary, the ECHR may look favourably on the applicant.

Nuala Mole’s article ‘Family Reunification in EU law and under the ECHR’ can be viewed here.

Brophy Solicitors

A SUMMARY OF THE FINANCIAL RESOURCE REQUIREMENTS FOR FAMILY REUNIFICATION

The Policy document on Non-EEA Family Reunification sets out the thresholds to be applied when accessing family reunification applications involving immediate family members:

· the nuclear family (married partners and children living in the same household); and

· de facto partners (a couple living together on a genuine domestic basis).

As the document points out, it must be recognised that “the financial capacity is just one of the conditions to be satisfied for family reunification to take place”. That being said, a significant amount of emphasis is placed on the financial requirements so as to avoid a situation where the applicant becomes a financial burden on the state.

Depending on the status of the sponsor, different sets of financial guidelines apply to particular cases:

The Sponsor is an Irish Citizen

Where the sponsor holds Irish citizenship, the guidelines are two tiered. Firstly, the sponsor must not have been reliant on state assistance for a continuous period in excess of 2 years, immediately prior to the application. They must not have been a burden on the state. Secondly, in the three year period prior to the application, the sponsor must have “earned a cumulative gross income over and above any state benefits of not less than €40k”.

The Sponsor is a Non-EEA National

In cases where a sponsor is not a national of a European Economic Area country the guidelines to be applied depend on which sub-category they fall into.

Category A sponsors include:

· Green Card Holders

· Investors

· Entrepreneurs

· Business Permission Holders

· Researchers

· INIS Approved Scholarship Programme Students (e.g. KASP)

· Intra Corporate Transferees

· PhD Students (subject to conditions including no recourse to social welfare payments)

· Full Time Non-Locum Doctors in Employment

In this category, it is possible for family reunification to take place before any earnings are accumulated. For this to be the case, the sponsor and their immediate family members subject to the family reunification application must continue to meet the conditions which their permission to reside in the state is based on. On renewal of their permission, evidence of such must be provided. For green card holders and investors, this will be accessed based on “achieving the levels of earnings projected”. While in the case of PhD students, time limits are applied and academic advancement must be evidenced. In addition to the particular requirements of a Category A sponsors status, the policy document sets out that there must not be “recourse to social welfare payments” i.e. neither the sponsor nor their family members may become a burden on the state.

Category B sponsors include:

· Non Green Card Employment Permit Holders

· All Stamp 4 Holders not covered by other more favourable arrangements

· Ministers of Religion who are not maintained by the church, in cases where they are it may be possible for these sponsors to be considered under Category A

This category of sponsors must have a gross income in both of the previous two years, in excess of the level applied by the department of Social Protection in assessing eligibility for Family Income Supplement. Based on the FIS, families with children are required to have the following net incomes per week; which are based on the number of children:

· 1 child - €506

· 2 children - €602

· 3 children - €703

· 4 children - €824

· 5 Children - €950

Where a couple does not have any children, the FIS does not apply. In cases where these requirements are met, there is a reasonable expectation that they will continue to be met in the future. Where a sponsor falls short of the required level, declared and verified savings may be taken into account.  However, as previously stated, these are mere guidelines and may not be strictly adhered to. The deciding officer assessing a particular case is afforded a certain level of discretion where there are “doubts regarding the sustainability of earnings”.
Regardless of which category the sponsor falls into, the onus of proof to satisfy the immigration authorities is on the applicant.

The Policy document on Non-EEA Family Reunification may be viewed here. Section 17, pages 39 to 41, set out the guidelines discussed above.

Brophy Solicitors

EU TREATY RIGHTS AND RETENTION OF THE RIGHT TO RESIDE FOR NON EEA FAMILY MEMBERS

We work on many EU Treaty Rights cases. An area currently causing much confusion is the EU Treaty Rights application for retention of the right to reside for non EEA family members.

In certain circumstances, a non EEA family member of an EU citizen may be entitled to an independent right to retain their residence in the State following the divorce or departure of the EU Citizen from the State.

Article 12 of Directive 2004/38/EC deals with the situation of death or departure of the EU citizen. The Directive is silent in respect of family members who are non EEA nationals, and therefore leave the matter to be determined at the discretion of the host Member State. In Ireland, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) has not implemented specific protections in these circumstances. It can therefore be understood that the non EEA family member loses their right of residence in the case of death or departure of the EU citizen.

However, there is an exception to this general rule. Article 13 (1) of the Directive provides for the right of retained right of residence for family members who are nationals of a Member State in the event of divorce. Article 13 (2) applies to family members who are not nationals of a Member State.

The primary qualifying condition is that set out in Article 13(2)(a):

“prior to the initiation of the divorce…the marriage…has lasted three years, including one year in the host Member State”.
The second sub paragraph of Article 13 of the Directive provides:

“Before acquiring the right of permanent residence, the right of residence of the person concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or…...or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements……Such family members shall retain their right of residence exclusively on personal basis.”

These provisions have been interpreted by the Department of Justice to mean the EU citizen must be in Ireland exercising EU Treaty Rights at the date of the divorce in order for Article 13 to apply. It is argued that otherwise, how can the non EEA family member retain a right of residence that they lost when the EU citizen previously left the State?

This is an important question in the case of a family member seeking to acquire a retained right of residence. Must he or she show that the EU national remained a worker etc. at the time that the right of residence is claimed to accrue (here the time of the divorce)?

In the UK, Regulation 10(5)(b) requires the applicant to show he or she was residing in the UK in accordance with these Regulations at the date of termination. In other words, that at the date of the termination of the marriage he/she was residing in the UK as the spouse of an EU national who was working at that date. This identifies the focus as being on the spouse’s status as a worker at the date of the divorce.

However, a distinguishing factor between Ireland and the UK is the fact the Ireland operates extremely restrictive divorce laws. A person cannot become divorced in Ireland until they have lived separately for a four year period. In such circumstances, many EU nationals will return to their home country to effect the divorce. Does this mean they have departed for the purposes of EU Treaty Rights law? And thus rendered the protections of Article 13 void for their ex non EEA spouse?

The question has become the subject of many judicial review proceedings before the Irish High Court in recent years. The High Court has made a reference to the European Court of Justice and we await the Court of Justice’s clarification on the point.

Brophy Solicitors

UPCOMING CITIZENSHIP CEREMONY

Monday the 22nd of September will see nearly 3,100 people pledge their loyalty to the Irish state and become Irish citizens. They will join the ranks of over 60,000 people who have been declared as Irish citizens in the Convention Centre, North Wall Quay since 2011. In a ceremony fitting of such an auspicious occasion, the candidates will solemnly declare their fidelity to the Irish nation and their loyalty to the state. Following this, the much anticipated words of the Attorney General will declare, “Congratulations. You are now a fellow citizen of Ireland”. Rounding off the celebration will be the playing of the Irish national anthem, Amhrán na bhFiann, to the new Irish citizens.

Brophy Solicitors wishes to extend its congratulations to a number of our clients who will be receiving Irish citizenship at this ceremony in September.

Comhghairdeas do gach dúine!

Brophy Solicitors

NATURALISATION UPDATE: SECTION 28 DECLARATIONS

Section 28 of the Irish Nationality and Citizenship Act 1956 (as amended) provides that any person who claims to be an Irish citizen, other than a naturalised citizen, may apply for a certificate of nationality stating that the applicant is an Irish citizen.

Pursuant to this, we have recently dealt with an application regarding two minors claiming Irish citizenship under Article 6 A of the 1956 Act which provides that “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years”. 

The father of the applicants entered the state in 2005 following his refugee father’s successful application for family reunification under Section 18 of the Refugee Act. The children in question were subsequently born in 2009 and 2011, their father therefore having in excess of the three year reckonable residence necessary for his children to be deemed Irish citizens. However, the applicants’ initial application for Irish passports was refused on the grounds that there were gaps in the father’s registration in the Register of Non-nationals. 

Applying the judgement of Mr Justice Ryan in Sulaimon V Minister for Justice Equality and Law Reform it was successfully argued that the gaps in the register were through no fault of the applicant’s father, whose lawful residence had been acknowledged on several occasions by the Minister through the granting of family reunification under section 18 of the Refugee Act and through the granting of visas permitting travel to the state.

Following a lengthy decision period by the department, we are pleased that certificates of nationality have been granted to the applicants in question. Brophy Solicitors wish to congratulate the applicants on their success and wish them well in the future. 

Caroline Grogana

Brophy Solicitors

MIGRANT ACCESS TO SOCIAL SECURITY & HEALTHCARE: POLICES AND PRACTICE IN IRELAND

Migrant access to social security has proved controversial across Europe, with a widespread perception that migrants account for a larger proportion of social security recipients than nationals. However, administrative data proves this to be incorrect, illustrating that in a number of social security areas there is actually an under representation of migrants as opposed to nationals. 

A recent European Migration Network (EMN) study finds that in terms of jobseekers benefit there is a disproportionately low level of migrants receiving payments at 14.7% of recipients, compared to their 15.4% share of the labour force. It was also found that the number of EU nationals between the ages of 15 and 28 receiving jobseekers allowance and jobseekers benefit were disproportionately high at 9.7% and 8.7% respectively while only accounting for 7% of the total labour force. In contrast non-EU nationals were found to be underrepresented only accounting for 3.1% and 1.6% of each benefit despite making up 4.1% of the labour forces. The study and its findings can be viewed here: http://emn.ie/files/p_201407170618162014_Migrant%20Access%20to%20Social%20Security.pdf

As well as looking at the numbers of migrants in receipt of the key social security benefits in Ireland, the EMN study also looked at the related policy decision making. In practice, Ireland applies the same rules governing access to social security to migrants as to non-migrants, however, their impact can differ greatly.

Firstly, the necessity of meeting the Habitual Residency Condition (HRC) was examined. While both groups are subjected to the same requirements, the impact on each can be substantially different. This is mainly due to the fact that there is not a sufficiently clear definition of Habitual Residence leaving a huge amount of discretion to the deciding officer in the Department of Social Protection. A number of NGOs have characterised the assessment of Habitual Residence as “too subjective and complex” to allow consistency in decision making. A 2008 Barrett and McCarthy study suggests that this discretion might very well be the reason for the lower proportion of migrant recipients. 

Difficulties can also arise from the assessment of the applicant migrant’s right to residence. In theory it entails a straight forward assessment of their status. In reality, it is much more complex due to the various permits available and the different rights each confer. Ten years on from its 2004 introduction, the system undoubtedly needs significant updating.

The EMN study also highlighted the ambiguity which has arisen from the separate evolution of the Irish immigration and social security policies. By way of example, would the holder of a work permit for a specified job be categorised as ‘available for and genuinely seeking work’? What exactly qualifies as ‘becoming a burden on the state’?

Similar issues are faced in regards to access to health services with migrants having to satisfy ‘ordinary resident’ conditions of having resided in the state or intending to reside in the state for at least a year. Despite its formal introduction in the Health Services (Amendment) Act 1991, no formal definition was provided, once again causing ambiguity and uncertainty.

As noted by the EMN study and from our own experience, there are clearly issues and discrepancies which need to be addressed in relation to migrants access to social security and health services.

Caroline Grogana

Brophy Solicitors

REFUGEE CRISIS

Last month World Refugee Day reminded us of the plight of millions of refugees worldwide, but this thought should be kept in mind for as long as war and conflict continue. The world is currently experiencing a refugee crisis, the scale of which was last seen during World War 2. This is largely caused by the Syrian war, which has claimed 80,000 lives, forced 2.5 million people to leave the country and internally displaced a further 6.5 million.

How has Ireland typically reacted to refugee crises? In World War 2, when around 50 million people were displaced by conflict and millions of people persecuted, Ireland hosted 150 Jewish refugees. After Augusto Pinochet’s coup in Chile in 1973, which resulted in thousands of deaths and injuries, Ireland was one of the last EU countries to take Chilean refugees and in the end only took 12 families. The year 1956 stands out, as 541 Hungarian refugees were welcomed in Ireland.

Now, during the greatest refugee crisis since the Second World War, when the UN estimated that 51.2 million people were forcibly displaced people worldwide at the end of 2013, Ireland is taking 90 Syrian refugees.

This number is extremely low. Austria, a country with a GDP per capita not far off Ireland’s, will host 500 Syrians, as will the UK and France. Germany, on the other hand, has committed to providing 30,000 places for Syrians.

Though the efforts of Germany and the rest of the EU seem impressive compared to Ireland, the EU is receiving relatively few refugees when Syria’s neighbouring countries are considered. While 60,000 Syrians have claimed asylum in the EU since the start of the war, more than 2 million have fled to the Syrians neighbouring countries, such as Lebanon, Jordan, Turkey and Iraq. This means that the EU has only received 4% of Syria’s refugees.

Everyday, an estimated 2,000 Syrian refugees enter Jordan. Lebanon, a country the size of Munster, is accommodating 1 million Syrians that have sought refuge there. These countries cannot cope with this huge influx of people. In Lebanon, the population explosion has led to price increases, housing shortages and many social problems.

Moreover, Jordan’s position highlights that Ireland’s low number cannot be justified on cost grounds. Developing countries, like Jordan, take in the vast majority of refugees. Indeed, 80% of the world’s refugees are hosted in developing countries.

All EU states should aim to help ease the pressure off Jordan and Lebanon and endeavour to make a real effort to help the millions of Syrians that have had to flee their home. Ireland, in particular, should commit to host more than just 90 Syrian refugees.

In 2012, the former Justice Minister Alan Shatter admitted with regret that Ireland’s “morally bankrupt” regime of the 1930s kept the doors to this state “firmly closed to German Jewish families trying to flee from persecution and death.” It is not enough to realise our mistakes 60 years too late, now is the time to take responsibility and play our part.

Ciara Dowd

Brophy Solicitors

GUIDANCE ON THE TREATMENT AND ASSESSMENT OF BEST INTERESTS OF MIGRANT CHILDREN

UK Court of Appeal decision: EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874,

Summary of facts

The Appellants consisted of a mother, a father and three children, all Philippine nationals. The mother was lawfully resident in the UK on a work permit from June 2007. The rest of her family joined her in April 2008. In February 2011, the Appellants applied for indefinite leave to remain. This application was incorrectly rejected on the basis that it was made on the wrong form. This meant that when subsequent applications were made, they were dismissed on the basis that there is no right of appeal. When the matter was finally considered, the judge rejected the claim because EV was not being paid a sufficient amount for her to qualify. Her employer wrongfully failed to employ her at the relevant rate. The family were denied leave to remain and were expelled.


Summary of guidance

Christopher Clarke LJ held that when deciding on the best interests of a child, the factors that are to be considered are;

(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to live in that country;
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (at paragraph 35.)

He continued: “The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.” (at paragraph 36)


The significance of this case is that the Court of Appeal has given the most coherent guidance to date on how to interpret and apply the best interest of children in immigration cases. This judgment will be useful in giving guidance on the issues that should be addressed by legal practitioners and whether an immigration officer has made a proper assessment of a child’s best interest in their determination. This judgment is obviously not binding in Ireland but offers assistance in an area where there is little Irish case law, policy or guidelines.

Ciara Dowd

Brophy Solicitors

DIRECT PROVISION – URGENT CHANGE NEEDED

There is an urgent need for change in Ireland’s asylum system. As it currently stands, asylum seekers must wait in direct provision centres while their application for refugee status or subsidiary protection status is pending. Direct Provision was originally introduced as an emergency measure in 1999 and was only supposed to last for 6 months. Indeed, the reaction to this change from asylum seekers is observable - in 2000, there were 10,938 new applications, while in 2013, there were 946.

Currently, there are around 6,000 people living in Direct Provision accommodation centres. Because of the poorly structured application procedures, 59% of current applicants have been in this system for over three years and some have been there for over 6 years. The hardship of long periods of time living in Direct Provision is aggravated by the general poor standards of accommodation and lifestyle associated with these centres. The recent Economic and Social Research Institute report on Direct Provision notes a lack of privacy, overcrowding, a lack of facilities for children, and a lack of autonomy. The lack of autonomy with specific regard to food and the lack of exercise facilities mean that physical health problems are widespread. Mental health problems such as anxiety and depression are also common.

Internationally condemnation 

In fact, the Direct Provision procedure has received international condemnation. The Balseskin Reception Centre in Dublin has been condemned as inadequate for its conditions by the Council of Europe in a report on trafficking. Women and children who have been sexually exploited and abused are held in mixed gender centre, which may aggravate their trauma. 

The matter was raised in the High Court of Northern Ireland in Belfast, where the concern applicants were asylum seekers who applied for asylum in the Republic of Ireland but subsequently travelled to Northern Ireland. Mr Justice Stephens noted the poor treatment asylum seekers in Ireland experience, in particular, the absence of permission to work, the low allowance and widespread health problems. He found that the conditions of the centres were contrary to the best interest of the child [In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88(14 August 2013)].

Can change happen?

It seems as the government are satisfied with the poor standards associated with Direct Provision centres, as it operates as a deterrent to asylum seekers who may wish to claim refuge in Ireland. Fine Gael TD Charlie Flanagan said during Prime Time in January that it should be ensured “that Ireland is not an attractive place for applicants”, so the State would not become overburdened. Elsewhere, the Former Minister for Justice Alan Shatter has also defended direct provision on cost grounds. 

Thus, it is clear that if an alternative system were going to be considered by the government, it would have to be equally economical or even cheaper. While the €19.10 per adult and €9.60 per child is easy to calculate, it is harder to put a monetary value on the mental health issues that asylum seekers experience resulting from the lack of autonomy in the centres, or perhaps the insensitivity to victims of gendered crimes. This sanctioned ill-treatment of those who have not committed any crimes and who have already suffered enormously can no longer continue and be justified on cost effectiveness grounds. The government needs to be conscious of what legacy it wishes to leave behind on its treatment of asylum seekers.

Ciara Dowd
Brophy Solicitors

SUMMARY OF KAREN BERKELEY’S SPEECH FOR THE CONFERENCE 'BEYOND THE SINGLE PROCEDURE: REFORMING IRELAND'S PROTECTION SYSTEM' HELD AT UNIVERSITY COLLEGE DUBLIN’S SUTHERLAND SCHOOL OF LAW TO MARK WORLD REFUGEE DAY 2014.

Mr Uustalu was granted the first declaration of statelessness in Ireland by the Minister for Justice in March 2014. Mr Uustalu is from a town located in Estonia, which, at the time of his birth, was in the territory of the USSR. In 1991, Estonia became an independent state and Mr Uustalu was issued an “Alien’s Passport”, identifying his citizenship as undefined. He was entitled to apply for Estonian citizenship, however, this entailed the applicant to pass an Estonian language exam, which Mr Uustalu and his parents, as Russian speakers, would have been unable to pass. 

Mr Uustalu first came to Ireland in 2002 and unable to acquire lawful residence status as a stateless person because of the lack of such a procedure. Unable to leave the state since then, because his “alien’s passport” expired, Mr Uustalu made an application for a stateless travel document last year. This failed because he could not provide a declaration from the Minister confirming his stateless status. Subsequently, there was an application for this declaration made under the 1954 Convention, but this application was unanswered. This led to high court proceedings seeking a declaration that the failure by the State to have in place a procedure by which Mr Uustalu could apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constituted a breach of his rights and the State’s obligations under the 1954 Convention relating to the Status of Stateless Persons. A few days before the hearing, the proceedings were settled and Mr Uustalu was issued with the first declaration of Statelessness in Ireland.

The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons. This is the principle international instrument to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms. Article 1 of this convention defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition describes a particular type of statelessness, which is characterized by the formal lack of nationality, this is known as “de jure statelessness”. There are also persons who are “de facto stateless”, that is, people who formally hold a nationality but experience the associated problems with statelessness because that nationality is ineffective. The Convention also distinguishes between non-refugee stateless persons and a stateless refugee. 

A declaration of statelessness is important because this recognition by a State provides a person with a legal status and basic entitlements, including a right to work and travel, among others. If a person is stateless without formal recognition, they will not have any legal protection or automatic rights to healthcare, education and employment, which puts them at risk of exploitation. 

 

The assessment of stateless status is complicated because of an overlap between statelessness and refugee status, and also the sometimes unclear distinction between de jour statelessness and de facto statelessness. The Convention does not provide for specific procedures for the assessment of statelessness.

For a fair and efficient status determination procedure, there must be a clear and transparent legal framework, access to legal advice and information and an effective appeal system. Decisions must be made in a timely manner and there should be a provision of accommodation and welfare through the determination process. A stateless person who also has grounds for asylum is not eligible for protection under the 1954 Convention , thus, the application for asylum must be considered first.

Ireland has failed to meets its obligations under the 1954 Convention, as there exists no formal procedure for determination in stateless. The few applications that have been made for recognition of stateless status have been made as submissions included in an asylum application, submissions included in an application for humanitarian leave to remain and sometimes as submissions at the deportation stage when it emerges that an applicant has nowhere to be deported to. Though some persons have has their stateless status recognized by ORAC and the Refugee Appeal Tribunal, the Minister has not afforded them the declaration to recognize their stateless status. Therefore, unless the stateless person can fit their case successfully in the asylum application process, or acquire legal status through other means, they are left in a legal limbo. 

The Irish State has, however, has implemented some of the derivative rights for stateless persons found in the Convention, such as application procedures for stateless travel documents and procedures for naturalisation of stateless persons. Yet, these are meaningless unless the applicant can be formally recognised by the State as stateless.

With the proposed introduction of the single procedure to the asylum application procedure, it is necessary to include stateless persons in this discussion. It is crucial that a durable solution for stateless people is put in place now. If there are to be further long delays in the creation of the single protection procedure, than a temporary procedure must be implemented for Stateless persons imminently. It is now imperative to address the failings of the Irish State to date to fulfill the obligations under international law by setting up a legal framework in which stateless persons can access a declaration of their status and the rights which accrue from this. 

I wish Nasc, the Immigrant Council of Ireland and the UNHCR the best of luck in their current campaign to ensure that stateless persons do not continue to be ignored in this way.

Karen Berkeley
Brophy Solicitors
 

SPOTLIGHT ON IRELAND’S FLAWED ASYLUM AND PROTECTION PROCEDURES AT UCD CONFERENCE FOR WORLD REFUGEE DAY

On Friday the 20th June last, Karen Berkeley from our offices presented a speech on statelessness for the conference 'Beyond the Single Procedure: Reforming Ireland's Protection System' held at University College Dublin’s Sutherland School of Law to mark World Refugee Day. Karen’s topic was Statelessness: Ireland’s obligations under the 1954 Convention relating to the status of Stateless persons.

Karen discussed the recent successful case of her client Mr Roman Uustalu who was granted the first declaration of stateless status in Ireland. Karen highlighted the urgent need for a comprehensive legal framework to be implemented to fulfil Ireland’s obligations under the 1954 Convention. To see a summary of Karen’s speech, see the attached link: http://brophysolicitorsimmigration.blogspot.ie/2014/06/summary-of-karen-berkeleys-speech-for.html.

Other important issues discussed were the asylum appeals backlog and the proposed single procedure reform to the asylum system.

It was noted that the delays in the high court for hearing appeals by asylum seekers whose refugee status applications have been rejected is one of the main reasons that people spend so long in direct provision centres. There are over 1,000 asylum cases waiting to be heard in the High Court. Barry Magee, the chairman of the Refugee Appeals Tribunal, said that “It would take four years and seven months to get through the current cases on the list, without any new ones being added.”

He added that he would be willing to seek alternatives mechanisms to determine those cases. Sophie Magennis, the head of office with UNHCR in Ireland, delivered the keynote speech and offered alternative dispute resolution as a mechanism which could be considered as a means to reduce the backlog in the High Court.

Patricia Brazil, a barrister and lecturer in law at Trinity College Dublin, spoke about the history of the protection system and judicial review. She noted that it was surprising that Ireland’s figures for judicial review of asylum cases were not higher, given the fragmentation of the asylum system. 

Ms Magennis further noted that UNHCR welcome the proposed single procedure. She said that additional measures could also be introduced, such as the easing of restrictions of the direct provision system and greater access to integration supports for applicants.

 

Karen Berkeley
Brophy Solicitors

VISA APPLICATIONS FOR EU CITIZEN AND THEIR FAMILY MEMBERS EXPLAINED

The EU Directive governing the family reunification for EU citizens exercising their Free Movement Rights is Directive 2004/38/EC. This is separate from national law. On INIS, www.inis.gov.ie, there is a choice to make an application of being a family member of an EU citizen or otherwise under national law. EU citizens and their family members have a right under residence, under Article 6 of the Directive, for up to three months in the State without any conditions.

The form of visa to be issued is a single entry C visa. To be granted a visa under the Directive, the applicant must prove that they are either a i) a qualifying family member or ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

Qualifying Family Members include:

i) the spouse of the EU citizen

ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

Permitted Family Members include:
i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained. 

ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

The applicant must prove:

i) that there is an EU citizen from whom they can derive rights from under the Directive;

ii) the existence of the required relationship as either a qualifying or permitted family member;

iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

The proofs that are required are:

i) proof of identity (for example, valid passports for the applicant and the EU citizen);

 

ii) proof of the required relationship (e.g. a birth certificate or a marriage certificate);

iii) for a permitted family member, proof of dependency or membership of the household;

iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland at the time of arrival of the applicant family member (proof of travel to Ireland, for example).

The INIS website lists types of supporting documentary evidence. There is no need for additional proofs, such as evidence of employment or letter of invitation. 

Refusals can be made on the following grounds:

i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Member states are not obliged to recognise a polygamous marriage where this is not allowed in their national law, as is the case for Ireland, thus this time of marriage cannot be relied upon as proof of the family relationship. Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship. However, marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into. 

If refused, the applicant may, in addition to, or as an alternative to, exercising their right of appeal, submit a new visa application for consideration. Any such application will be considered separately from their application and will not affect their right to appeal.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications. 

If the visa is approved and the applicant wishes to reside in Ireland for more than three months, then they should make an application (when in the State) for a residence card (GNIB card) of a family member of an EU citizen to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

Ciara Dowd 

Brophy Solicitors
 

THE NAWAZ CASE AND THE NEED FOR THE "SINGLE PROCEDURE" IN PROTECTION APPLICATIONS

In the recent case of Nawaz, the Court of Justice of the European Union criticised the Irish asylum application procedure for lack of basic fairness and stated that it should be possible to submit the applications for refugee status and subsidiary protection status at the same time, in other words, that there should be a single procedure for asylum applications.

There are many problems with the current procedure in Ireland, which is that applicants seeking subsidiary protection status must apply first for, and be refused, refugee status. Ireland is the only country in the EU which this two stage application. Indeed, Ireland has among the lowest grant rates in the EU for subsidiary protection status, granting only 30 last year. Subsidiary protection applies to third country nationals who would be at risk of being killed, tortured or at risk of human rights abuses if they were deported, but who do not fit the narrower criteria of refugee status.

Applications for refugee status are processed by the Office of the Refugee Applications Commissioner (ORAC). If ORAC does not recommend granting refugee status, the applicant may appeal to the Refugee Appeals Tribunal, or may wait for a deportation order. It is only at the point of the deportation order that an application for subsidiary protection can be made.

The separation of these applications over different stages is a problem mainly because it causes asylum seekers, who may be clearly applicable to subsidiary protection, to go through the process of applying to refugee status. This means that they may spend unnecessarily long periods of time living in Direct Provision centres, which have been internationally condemned for their poor conditions. Asylum seekers spend 45 months, on average, in Direct Provision centres, while 845 people have spent more than 6 years in the system. This has significant personal consequences on the asylum seeker who have suffered severe traumas in their country of origin and also places a burden on the state. In 2012, the cost of the Direct Provision centres was €62.3 million.

The single procedure is being advocated as the main solution to replace the problematic system currently in Ireland. The single procedure would end the two stage process of applying for subsidiary protection. A single procedure for asylum applications would lead to faster processing, reducing the length of time individuals and families spend in Direct Provision centres and provide comprehensive access to all forms of international protection. It is possible that the single procedure would make decision-making more complicated, in that, applications for refugee status and subsidiary protection status would have to be considered simultaneously. Complications arising from this may include errors in decision making which may in turn lead to deportation of people who are genuinely at risk. Thus, it is crucial that the new single procedure system be well resourced and managed. 

The single procedure was first introduced in Ireland in the Immigration Residence and Protection Bill 2008. However, this Bill has been repeatedly delayed. Therefore, especially with the recent ruling of Nawaz, it is necessary that the government legislate immediately for a single procedure for asylum applicants, possibly separately from the other issues contained in the Bill for the sake of expediency. 

Ciara Dowd

Brophy Solicitors
 

WORLD REFUGEE DAY

World Refugee Day is taking place on the 20th of June. This day aims to draw attention to hardship faced by the millions of refugees who are forced to leave their homes as a result of conflict and persecution. World Refugee Day also aims to commemorate the cultural contribution that refugees make to societies around the world. There are events held worldwide to celebrate the courage, resilience and strength of refugees and the solidarity of the countries that assist in providing asylum. There are many events taking place in Ireland to commemorate this day.

 

Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law are hosting a conference to mark World Refugee Day from 10am to 3pm. The conference is titled Beyond the Single Procedure: Reforming Ireland’s Protection System, and will include speakers from the United Nations High Commissioner for Refugees (UNHCR), various refugee support agencies in Ireland, legal practitioners working in the area. Karen Berkley from our office will be speaking on topic of Statelessness. The conference will serve as a forum to discuss the refugee protection in Ireland and the impact of the pending reforms. To attend this event, please contact Bethany Wynee-Morgan on Bethany@nascireland.org. 

 

The Irish Refugee Council are holding an event at Studio Six, Temple Bar Gallery, Dublin 2 at 6pm with guest speak Geoffrey Shannon, Special Rapporteur on Child Protection. The success of the Irish Refugee Council’s Advocacy programme will be discussed in light of the launch of its evaluation and resource guide for service providers working with separated children. To attend this event, please RSVP to caroline@irishrefugeecouncil.ie. 

 

The UNHCR has organised a book-reading campaign with libraries and bookshops across Ireland, beginning the 16th of June. This campaign will draw attention to books that are based on experiences of refugees, such as The Kite Runner, which will in turn educate both children and adults on the devastating impact of war on families.

 

 

UNHCR and Sport Against Racism Ireland are holding the event “The Fair Play Cup, Celebrating World Refugee Week” at the Law Society Gardens, Blackhall Place, Dublin 7. This event will draw football players from refugee and community groups and aims to highlight the positive experiences of refugees in Ireland and draw attention to the plight of refugees worldwide.

 

UPDATE ON THE IMMIGRANT INVESTOR PROGRAMME

We have been dealing with a number of queries in relation to the Immigrant Investor Programme. The programme is open to non-EEA nationals and their families who commit to a specific investment in Ireland. Successful applicants will be granted rights of residence in Ireland with an initial period of two years and then a further three years after which they may be eligible to apply for citizenship.

Two specific queries have come up several times when we have been approached by potential applicant investors.

The first question relates to whether or not an investor is required to be resident in Ireland should their application be successful. It is clear from the Departmental guidelines that there is no minimal residence requirement other than a stipulation that the person concerned must visit Ireland at least once every 12 months.

A second query that we have been dealing with is in relation to the different types of investments open to potential applicant investors. The previous guidelines indicated that applicants could apply to an “approved investment fund”. The only guidance provided by the Department on this type of investment was that the fund invested into would have to be regulated for the purposes of doing business in Ireland and the investment strategy of the fund must be compatible with the aim to the scheme.

We have written to the Department on several occasions looking for a further clarification on what types of funds would be acceptable as approved funds. We note that the guidelines on the INIS website have now been updated to deal with this issue. It is stated that the approved investment fund is not available at this point and further details will follow. We refer you to the updated guidelines that are available here.

While the approved investment fund is no longer available, it should be borne in mind that there are a number of other options available to possible applicants including an investment into Irish Enterprise, an investment into an Irish Real Estate Trust and a mixed investment into residential and commercial property. There is also scope to make a one off philanthropic endowment and also provision to invest in the Immigrant Investor Bond.  

It is clear from recent changes to the Entrepreneurship Programme and the Immigrant Investor Programme that these schemes are being honed by the Department and that the guidelines are being frequently updated and amended. Anyone considering making an application should be sure to check the up to date position to check their eligibility and the current requirements.

Rebecca Keatinge

Brophy Solicitors

EU TREATY RIGHTS – “CONTINUOUS PERIODS OF RESIDENCE” FOR PERMANENT RESIDENCE APPLICATIONS

The opinion of Advocate General Bot was delivered on the 14th May 2014 in response to the Irish High Court’s request to the Court of Justice for a Preliminary ruling in the case of Ogieriakhi v Minister for Justice and Equality, Ireland, (Case C‑244/13) available here. 

The Irish High Court requested the Court of Justice, to clarify the notion of ‘continuous legal residence with the Union citizen’ for the purposes of Article 16(2) of Directive 2004/38/EC and, more specifically, to clarify the words ‘with the Union citizen’.

The case concerned the application of Mr Ogieriakhi, a Nigerian national, for a permanent residence card based on his marriage to Ms Georges, a French national. The couple married in May 1999, and cohabited until August 2001 when their relationship ended. During the period from October 1999 to October 2004, Ms Georges was either working or claiming social security payments. They were divorced in January 2009.

Mr Ogieriakhi was refused his application for a permanent residence card and his subsequent case in the High Court was dismissed on the grounds that the 2006 Regulations did not apply to residency which pre-dated their coming into force in January 2007. Following an appeal to the Supreme Court, Mr Ogieriakhi was granted a right of residence by the Minister for Justice in November 2011, on the basis that he satisfied all the relevant conditions specified by the 2006 Regulations. Mr Ogieriakhi then commenced the main proceedings to the Court of Justice in which he is sought damages against Ireland for breach of EU law. In particular, he had lost his job because of the Minister’s refusal to grant the residence card. 

In summary, Advocate General Bott found that a third-country national spouse of a Union citizen who has exercised a right of free movement may claim a right of permanent residence where the couple lived under the same roof for only two years and for the remaining three years they agreed to live apart with different partners.

Also, for the purposes of a permanent residence card application pursuant to Article 16(2) of Directive 2004/38/EC, a third-country national spouse of a Union citizen may rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

We now await to see if the Court of Justice will follow this opinion of Advocate General Bot.

Karen Berkeley 

Brophy Solicitors

APPLICATIONS FOR VISAS AND RESIDENCE PERMISSION FOR DEPENDANT NON NATIONAL PARENTS

We are currently working on many applications on behalf of our clients to be joined in the State by their elderly dependant non EEA parent/s. The cases involve general Long Stay Visa applications, and sometimes Change of Status applications while the parent is already in the State.

This is an area now governed by the Minister’s “Policy Document on NON EEA Family Reunification” published in December 2013. The guidelines focus on the financial responsibility for the subject of the application. The matter of whether the subject is dependant or not is left to the sponsoring family member to prove. No definition of dependency is provided. The guidelines indicate that the onus is on the sponsoring family member to show that there is no viable alternative option other than the dependant parent residing in Ireland. The specific financial thresholds referred to in the guidelines include evidencing that the sponsoring family member is earning a minimum of €60,000/ €75,000 (net) for the three years preceding the application (depending on whether one or two parents are the subjects of the application). 

The high financial thresholds will most likely act as a barrier to many applications such as this, if applied very stringently. However, we highlight that the policy guidelines are subject to the parameters of the law. In general, the law requires that each application is assessed on it’s individual merits, and a fair and reasonable outcome is reached, appropriate and proportionate to the circumstances at hand. 

We have limited specific law in this area, other than the significant judgement in the case of Mr Justice Cooke in the case of O'Leary v. Minister for Justice [2012] IEHC 80 (High Court, Cooke J, 24 February 2012). Mr Justice Cooke gave weight to the moral institution of the family, as protected by Article 41 of the Constitution, and confirmed that dependant parents of an adult child remain members of the family unit within the meaning of Article 41. He referred to right to rely on Article 41 when seeking State intervention to discharge a “moral obligation” towards non national family members in need of support and care.

In terms of the lawfulness of any interference by the State in family life, Mr Justice Cooke stated as follows;

“The core value enshrined in Article 41 is 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 individual members of the family or necessary in the overriding public interest.”

Mr Justice Cooke emphasized in his judgement that it would be an unbalanced approach for the Minister to isolate an analysis of dependency to purely financial aspects. He also confirmed the definition provided by Mr Justice Hogan in the judgement granting leave, that while dependency must go beyond “welcome” support, it is not necessary that the receiver of support be in a situation of destitution.

We would submit that in cases where a legitimate relationship of dependency and financial self sufficiency exists, and there are no exceptional circumstances to warrant a lawful refusal, Mr Justice Cooke’s judgement in the O’Leary case gives much scope for applicants to argue their case outside the strict financial thresholds of Minister’s guidelines.

Karen Berkeley 

Brophy Solicitors