Recent Developments in Immigration

Updates from the Minister for Justice and Equality

On the 16th September 2014, Minister Fitzgerald announced new plans to increase the number of civilians carrying out key immigration functions in border management and registration roles. These jobs are currently within the purview of An Garda Siochana but as part of the Minister’s push to get more Gardai out on the streets, these roles are expected to be undertaken by an additional 80 civilian staff. The new programme will see civilians carrying out checks at both Dublin Airport terminals, as well as the transfer of the immigration permission registration function from An Garda Siochana to the Irish Naturalisation and Immigration Service of the Department of Justice and Equality (INIS). The Minister noted that the Gardai “will continue to provide core policing functions at the Airport and support the civilian staff as appropriate”. The full text of the Minister’s press release can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20major%20immigration%20civilianisation%20initiative>

On the 2nd September 2014, the Minister announced major reforms of the student immigration and international education sector. This move comes in the wake of a number of private college closures this year. The reforms aim to protect the interests of genuine students, while reducing instances whereby the immigration system can be abused. A recent policy statement sets out three primary pillars of reform: only accredited programmes will be in a position to enrol international students, inspection will be increased to ensure education and immigration standards are maintained, and the non-EEA student work concession will be altered to mitigate abuse. In the course of her statement, Minister Fitzgerald also warned those students affected by college closures earlier in 2014 to regularise their status in the State and ensure they were abiding by current immigration laws. The full text of the Minister’s press release, along with links to the policy statement of the Task Force, can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Ministers%20O%E2%80%99Sullivan%20and%20Fitzgerald%20launch%20major%20reform%20of%20student%20immigration%20and%20the%20international%20education%20sector>

Proposed reforms of Direct Provision Centres

Following increased media reportage into conditions in the State’s Direct Provision centres, in mid-August the Minister for Justice announced that a working group was to be established in the coming month to review the current system. The main issues outlined by the Minister include welfare payments, third-level education access, and support for children. Although Minister Fitzgerald has promised a more efficient application process would be in place by midway through 2015, she also ruled out the possibility of an absolute extension of the right to work to asylum seekers, citing the country’s unemployment issues as cause. While the establishment of a working group has been praised as a positive development by UN agencies, in more recent days that Minister has warned against “unrealistic expectations” in terms of reform. At present some 4,330 adults and children are being housed in Direct Provision centres around the country. Pressure is mounting on the Government to improve living standards, with recent weeks seeing asylum seekers protesting the system and calling for an end to Direct Provision entirely. Full articles on the above can be found at: The Irish Times “Government to review conditions for asylum seekers” 12th August 2014 <http://www.irishtimes.com/news/social-affairs/government-to-review-conditions-for-asylum-seekers-1.1894079> The Irish Times “Minister warns against unrealistic expectations on direct provison” 25th September 2014 <http://www.irishtimes.com/news/politics/oireachtas/minister-warns-against-unrealistic-expectations-on-direct-provision-1.1940425> The Irish Times “Asylum seekers mount protest at Cork direct provision centre” 15th September 2014 <http://www.irishtimes.com/news/ireland/irish-news/asylum-seekers-mount-protest-at-cork-direct-provision-centre-1.1929294>

Immigration, Residence and Protection Bill 2010

As part of her pledge to speed up the asylum process in the coming year, Minister Fitzgerald has committed to the introduction of a Single Procedure Mechanism, as distinct from the provisions of the currently dormant Immigration, Residence and Protection Bill. The Single Procedure Mechanism would allow claims for asylum and subsidiary protection to be made simultaneously. At present, claimants must first seek asylum, regardless of whether they meet the stringent criteria for refugee status. This procedure could theoretically save claimants years of waiting, and has been campaigned for by numerous organisations including the Irish Refugee Council and NASC. Publications and press releases on the above can be found at: “Press release: NASC welcomes renewed government commitment to reform of direct provision” 12 August 2014 <http://www.nascireland.org/latest-news/press-release-nasc-welcomes-renewed-government-commitment-reform-direct-provision/> “Roadmap for Asylum Reform” < http://irc.fusio.net/wp-content/uploads/2011/08/Roadmap-for-Asylum-Reform2.pdf> 


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

LONG TERM RESIDENCY FOR RETIRED PERSONS OF INDEPENDENT MEANS

We are currently advising several clients on applications for permission to reside in the State as retired persons of independent means. This specific situation is relevant to a non-EEA person, who does not seek recourse to employment, self-employment or public funds, but merely wishes to reside in the state, supporting themselves through independent means, for example income generated through rented properties, investments etc.

We recently contacted the Irish Naturalisation and Immigration Service (INIS) to establish if a specific application procedure applies here and what criteria must be satisfied. We referred to the INIS website that sets out the various forms of stamps and includes a retired person of independent means as covered by Stamp 3 permission.

We received a response from INIS this week that states that the appropriate stamp is in fact a Stamp 0 and that their website will shortly be updated to reflect the position. INIS stated that they do not have a distinct category of retirees for immigration purposes. INIS indicated that permission would only be granted on the express understanding that the applicant is not entitled to any State benefit and on the basis of full documentary evidence to confirm they will not become a financial burden on the State. The primary requirements were stated to be: financial self-sufficiency, comprehensive medical insurance, and good character. They clarified that there is no application form. They also clarified that it is open to non visa nationals to make an application from outside the State.

It is clear therefore that in order to attain stamp 0 in this capacity, an applicant must provide extensive documentary evidence, primarily substantiating their financial self-sufficiency, including details of all income and expenditure. It is necessary to have comprehensive medical insure, that INIS stated must be equivalent to Plan D VHI, HealthPlus Premium (http://www.vhi.ie/pdf/products/TOBHPpremium.pdf). The applicant must also be of good character and be able to provide police references from every country they have resided in during the twelve months prior to application.

If the application is successful residence will be granted for a maximum of twelve months, after which a renewal application must be submitted.

INIS stated in their response that this is to be regarded as a temporary status only. It is important to note however that Stamp 0 is not amongst the express exclusions for eligibility for citizenship by naturalisation and therefore any period spent on Stamp 0 should constitute reckonable residency. See our previous post that specifically addresses this point.

Brophy Solicitors

SUMMARY OF THE INIS POLICY DOCUMENT ON NON-EEA FAMILY REUNIFICATION (Published December 2013)

Addressing the need for more comprehensive and transparent guidelines to assist both applicants and decision makers in the area of family reunification, the Policy Document on Non-EEA Family Reunification, released by the Department of Justice in December of 2013, aims to make clear how the State intends to deal with family reunification cases. The document does not create or acknowledge any new rights of family reunification, however it does present a series of proposals aimed at improving the family reunification process. Here we have summarized some of the more significant proposals as well as the current policies outlined in the document with respect to application processing, the qualifications of a sponsor, dependency requirements, eligibility requirements for spouse, civil partner or de facto partner, elderly dependent parents, and applications for parental migration on the basis of Irish citizen children.

Proposed Changes to Family Reunification Application Processing

The document proposes administrative changes in consolidating the processing of family reunification applications and appeals within the INIS. 

The document proposes the establishment of a preclearance facility for family reunification applications, requiring all applications to be submitted to the facility from overseas rather than upon arrival in Ireland. This would involve a standard application form and fee and the establishment of a central specialist family settlement unit where all applications would be referred. This standardized system would place visa required and non-visa required applicants on a level playing field and work to ensure transparent and consistent information gathering for both officials and applicants. It would also aim to address issues arising from the lack of certainty for applicants applying from within the country who only have ninety days to complete the process. Further, the document states the intention to discuss the addition of language and cultural knowledge requirements for applicants at all levels of immigration.

Second, the document proposes the establishment of a statutory appeals system through provisions in the Immigration Residence and Protection Bill. Once in place, applications for family reunification will be incorporated.

Lastly, the document proposes to provide specific immigration permission for children under the age of 16 to be registered on an administrative basis (not currently allowable under the 2004 Immigration Act) which will allow them to establish personal resident history at an earlier date.

Qualifications of a Sponsor 

Currently, those eligible to be sponsors in the family reunification process include a:

• An Irish citizen residing or intending to reside in Ireland
• Lawfully resident foreign national as an Employment Permit Holder 
• Lawfully resident foreign national with an immigration Stamp 4 , including Long Term residents 
• If Stamp 4 holder is a refugee or a person granted subsidiary protection, this also applies 
• Lawfully resident foreign national with an immigration Stamp 5
• Researcher under a hosting agreement
• PhD student studying for a doctorate accredited in Ireland
• Minister of Religion with an immigration Stamp 3

With respect to these qualifications, it is proposed that sponsors will additionally have to achieve minimum levels of earnings prior to being eligible to sponsor a family member. These will be set at a cumulative gross figure of €40,000 over three years where the sponsor is an Irish citizen and a higher level where the sponsor is a non-EEA national. Social welfare payments will not be reckonable as earnings for this purpose. This requirement would also increase where an application is made for a dependent elderly parent.

Further, the document proposes to adopt a streamlined approach to residency requirements for non-EEA sponsors, with highly skilled workers, entrepreneurs, researchers and others able to apply immediately for family reunification. A 2 year waiting time is applied in cases of certain other categories.

Dependency Requirements

As defined and further clarified by this policy document, “dependency” means that the family member is (i) supported financially by the sponsor on a continuous basis and (ii) that there is evidence of social dependency between the two parties. The degree of dependency, both financial and otherwise, must render independent living at a subsistence level by the family member in their country impossible if that financial and social support is not maintained. This relationship must also be proven to be pre-existing and sustained prior to creating and submitting an application for family reunification.

Eligibility Requirements for Spouse, Civil Partner or De Facto Partner

Any eligible spouse, civil partner, or de facto partner must be at least 18 years of age. The relationship must be monogamous, freely entered into by both parties, and lawfully conducted and recognized under Irish law. The couple must also demonstrate a clear commitment that they will live together following the outcome of the application as circumstances permit.

For marriages and civil partnerships there is no minimum duration requirement. De facto partnerships are required to prove the existence of a relationship akin to marriage, including cohabitation two years prior to submission of the application.

Entry for the purposes of marriage or civil partnership may also be permitted given a 6 month provision, so long as it can be proven that the union is not for convenience. Similarly, proxy marriages may also be recognized under the same policy if it is demonstrated that the marriage is genuine and freely entered into by both parties and the couple can show that they have met each other in person.

Elderly Dependent Parents

Because the potential financial liability for the State of providing medical treatment to accepted elderly dependent relatives is considerable, the document states “emigration, including that by Irish people, is undertaken with no legitimate expectation of ever being joined by parents” and as such, all cases are approached highly restrictively. 

To address this concern, the document proposes that the sponsor of an elderly dependent relative be required to have earned in Ireland each of the three years preceding the application an income after tax and deductions of no less than €60,000 in the case of one parent, and € 75,000 in the case of two parents. The requirements for dependency outlined previously must also be met in all cases involving elderly dependent relatives. As such, the sponsor must also prove that there is absolutely no viable alternative including the availability of other family members, financial resources, and the movement of the sponsor from Ireland to care for the applicant.

If the application is approved, the document further proposes that the applicant be covered by private medical insurance at above the level of VH plan D or equivalent. The sponsor must also sign a legal undertaking to bear personal and complete financial responsibility for the elderly dependent relative and make detailed provision for their accommodation. Permission of this kind would be regarded as temporary and renewable on an annual basis providing all conditions are met and the accepted applicant will be given Stamp 0 (not reckonable for Long Term residence or Naturalisation).

Irish Citizen Children-Applications for Parental Migration

In cases where parents seek residence in Ireland on the basis of their citizen (minor) child, applications are considered with respect to the contribution the parent’s presence would contribute to the child’s enjoyment of its rights as a citizen and parents cannot claim personal rights of residence merely by their parentage of a minor Irish citizen child. This addressed, the document states that each application is viewed individually, taking into account each family’s specific situation. However, it also states that a series of linked applications, seeking to bring to Ireland both parents and all siblings on the basis of a single minor citizen child would seem to go beyond what is reasonable. This is seen as particularly relevant if the State would be required to provide for the family financially.

Karen Berkeley 

Brophy Solicitors

UPDATE ON STAMP 0 AND STAMP 3 RESIDENCY PERMISSIONS

Recently we have received queries from confused clients whose Stamp 3 permission has been changed to the ‘low level immigration permission’ that is Stamp 0. There are notably much similarity between these permission types, hence there is much confusion as regards to which stamp may be applicable to various circumstances.

In order to provide clarification, it is firstly necessary to understand what exactly each permission entails:

STAMP 0

Stamp 0 residence permission was implemented by INIS in December 2011. The procedure implement the stamp was vague, and unfortunately not much clarification has since followed.

What do we know?

According to the INIS website guidelines, Stamp 0 is ‘a low level immigration permission that allows a person to remain lawfully in Ireland for a specific temporary and limited purpose. It is not intended to be a pathway to any more permanent form if immigration’.

This appears to imply that stamp 0 does not provide reckonable residency required for naturalisation. However, on the contrary, it has been confirmed to us by the Department previously that the stamp does indeed count for reckonable residency. We are currently seeking clarification from the Department on this point.

There is no specific application process but rather the applicant will seek permission in the normal way.

It is noted a service provider, or academic, or an individual in exception humanitarian circumstances are examples of those who may avail of this permission.

Holder of the permission may not work or engage in a trade, business or profession, unless specified in INIS letter.

It is further noted that the stamp is provided on the basis that the holder receives no State beneifts, and that they are self sufficient through personal resources of financial support from an employer or family while present in the State.

As with all Immigration permissions, breaching a condition of the permission may result in a permission being revoked or not being renewed.

STAMP 3

A holder of stamp 3 per mission is entitled to remain in Ireland on the basis that they do not enter employment, nor engage in any business or profession and do not remain later than the specified date.

Main categories of those who are granted this permission include: non EEA visitors, non EEA retired person of independent means, non EEA Minister of Religion and member of religious order, non EEA spouse/dependent of employment permit holder.

Stamp 3 permission is reckonable, and thus after 5 years a holder is eligible to apply for naturalisation. 5 years of stamp 3 permission also entitled one to apply Stamp 3 Long Term Residency, which is valid for a further 5 years.

It is submitted that the vital differences in these permissions is that Stamp 0 does not provide for a more permanent form of residency and it not reckonable.

Confusion?

In consideration of the above information, in what regard has there been confusion in relation to these permissions?

Firstly, as regards clients who have been granted Stamp 0, the renewal process in certain cases, where there has been no change regarding the conditions at the time of granting of the permission, has been met with some difficulty, with the Department providing new application numbers, inferring it is indeed a new application, rather than a more straightforward renewal process.

Secondly, we have seen stamp 0 issued to many non EEA retired nationals of independent financial means, and non EEA dependents on employment permit holders in that state. This seems contrary to the INIS guidelines which explicitly state such persons are eligible for stamp 3 permission. Additionally, people who have been granted stamp 3 person on such basis have prior to the impending renewal of the permission been notified that their status will change to being that of stamp 0. We find it confusing that the decision has been taken to make such amendments, when there has not been any significant change in the circumstances of such persons. There is much confusion as to whether this new permission is applicable regarding reckonable residency. As noted above, we are seeking clarification on this point, and will post on this matter once we have received an adequate explanation.

We urge that greater clarification for this change in permission be provided. The guideline note appears to provide information contrary to that which has been stated by the Department. We further stress the need for a more straightforward stamp 0 renewals process, as the current manner with which it is being dealt with cannot be deemed as an efficient nor effective system.

Naomi Pollock

Brophy Solicitors

THE HARSH REALITY OF THE ONGOING ISSUE OF HUMAN TRAFFICKING

The recent horrific discovery of a young girl found abandoned outside the GPO has thrust in the spotlight the ongoing tragedy that is human trafficking.

The girl, originally believed to be 14 or 15 years of age and from Eastern Europe, was reported to be found in a distressed state by Garda Siochana in Dublin City Centre on October 10th. She had no identification and was unable to speak with officers when discovered. 

Although recent developments have led to the belief that the young woman was not in fact a victim of trafficking (see the Irish times news report here http://www.irishtimes.com/news/ireland/irish-news/woman-found-in-dublin-to-remain-in-state-care-1.1586938), the incident still brings home the harsh truth of those vulnerable to and suffering from the crime of human trafficking.

The Immigration Council of Ireland (ICI) have stressed that official figures confirm that over half the victims of human trafficking in Ireland are children. 48 people were identified as being trafficked victims in 2012, with most having been sexually exploited and 23 of those were children.

Recently, (26th September 2013) GRETA (Group of Experts on Action against Trafficking of Human Beings) published a review entitled ‘Report Concerning the implementation of the Council of Europe Convention on Action against Trafficking by Ireland. The Report stated that the number of prosecutions and convictions for human trafficking is still ‘very low’ and the length of criminal proceedings is ‘also a manner of concern’.

Irish authorities were urged by the review committee to take additional measures to ensure that human trafficking offences are investigated and prosecuted effectively, which they say would lead to ‘proportionate and dissuasive sanctions’. It was stressed that new legislation relating to immigration, asylum and human trafficking should be implemented as soon as possible. 

The Immigration Council of Ireland (ICI) has called for development in 4 main areas:

The full implementation of the unanimous recommendations by the Justice Committee for laws targeting the buyers of sex, whose actions fuel trafficking.

The appointment of a National Rapporteur on Trafficking to ensure a joined-up approach across Government and all agencies to respond to this multi million euro crime.

Reform of the system of identifying victims, Ireland has been criticised internationally in this area

The provision of safe and secure accommodation for victims to ensure an end to intimidation, abuse and violence

It must be noted that some progress is underway, with Irish airline crew, airport ground staff, port staff and other transport workers to be offered training to spot victims of trafficking and offer them an escape from pimps and traffickers under a pilot project being developed by the Immigrant Council of Ireland

However, it is necessary to emphasise that human trafficking remains a very real and dangerous concern, prevalent worldwide. Many immigrants into this country and the EU have been or are victims of such crimes. Scarily, many are not even aware that they are such victims. It is necessary to raise awareness of such heinous activity, in order to help prevent and provide aid for victims who find themselves in such circumstances those originally believed of the young woman who is at the centre of the misfortune highlighting the continuing harsh reality of this global crisis. 

To review the Great report, please pursue the following link: 

http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2013_15_FGR_IRL_public_en.pdf

To review the Department of Justice and Equality information website in respect of human trafficking, explaining its causes and what to do in the event of suspicious sightings please see the following link:

http://www.blueblindfold.gov.ie/

Naomi Pollock

Brophy Solicitors

Unlawful killing of deportee should be a warning to all States

Last week, an inquest jury in the UK returned a verdict of unlawful killing of Jimmy Mubenga, an Angolan national who died on board a plane at Heathrow airport in October 2010 while being deported from the UK to Angola. He died of positional asphyxia at the hands of G4S security guards, independently contracted by the UK Home Office to effect deportations. The inquest jury held that the G4S officers used unreasonable force when they held Mr Mubenga with his head down, restricting his breathing. Passengers heard Mr Mubenga calling for help and saying that he could not breathe. Passengers told the inquest that Mr Mubenga was crying out: "They're going to kill me." Mr Mubenga was pronounced dead on the plane a short time later. He had been in the UK for sixteen years and leaves a wife and five children.

This is a chilling and disturbing case on a number of levels. The high profile case shows up the dark side of deportation. It is a part of the immigration process we hear and read very little about. By its nature, it is difficult to get information about how deportation is effected and how deportees fare. I recall an Iranian client called me from Iran to tell me how he had been restrained, punched and beaten in the course of his deportation from the UK. Yet there was very little we could do to help him as he was outside of the UK and had no evidence to document what had happened to him.

In the UK, independent contractors such as G4S are brought in to effect deportations. Deportation is the most costly part of the immigration process for any State and sub-contracting its implementation is one way to reduce costs.

But questions are now being asked as to whether such sub-contracting might come at a higher cost. The G4S guards involved in the tragic deportation effort of Mr Mubenga failed to adhere to their own guidelines. Furthermore, the inquest found that the guards would have known that their actions were causing Mr Mubenga harm, even serious harm. During the hearing more sinister details emerged: two of the guards had a string of racist "jokes" on their phone containing what the coroner Karon Monaghan QC described as "very racially offensive material". All this reinforces the need for any necessary deportations to be effected in an appropriate, safe and transparent manner. The tragic case of Mr Mubenga shows that sub-contracting this difficult process out to a third party is not a safe option and can have devastating consequences.

A full briefing on the Mubenga case can be read here:
http://www.inquest.org.uk/pdf/briefings/INQUEST_briefing_Jimmy_Mubenga_updated_may_2013.pdf

 

Rebecca Keatinge
Brophy Solicitors

CASE ANALYSIS: DOS SANTOS – DEPORTATION AND CONSTITUTIONALITY OF SECTION 3 OF THE IMMIGRATION ACT 1999

Mr Justice Colm Mac Eochaidh recently granted an interlocutory injunction restraining the deportation of a Brazilian family in the case of Odenis Rodrigues Dos Santos & Ors v Minister for Justice and Equality. He also granted leave to seek judicial review. The judgment was handed down on the 30th of May and gave consideration to international and domestic law. 

The case concerned a family who have been living in Roscommon Town. Mr Dos Santos arrived in Ireland in 2002 and his wife and children joined him in 2006 and 2007. Since then the children have attended school in Ireland and settled into Irish society. In March 2012, the Minister for Justice issued deportation orders in respect of the family.

The applicants submitted that the Minister didn’t find the correct balance in issuing the order because he focussed too heavily on their immigrant status instead of looking at the extent to which they had assimilated into Irish society and the amount of time that they had spent in the country. They claimed that the Minister’s actions showed disregard for the UN Convention on the Rights of the Child. The argument was also made that s3 of the Immigration Act 1999 is unconstitutional because of the fact that a deportation order is effectively a lifelong ban from entering Europe. 

Representatives of the Minister for Justice responded by arguing that the applicants were non-nationals who were illegally in the state and therefore should be deported. They also submitted that there was no allegation of threat of serious harm to the applicants if they were returned to Brazil and therefore there was no reason for the court to restrain the deportation. 

In coming to the conclusion that the applicants’ deportation should not take place before a full hearing of matters, Mr Justice Mac Eochaidh looked at the manner in which the Minister and his officials considered the circumstances of the child applicants. He said that the test to be applied was whether the order would interfere with the applicant’s right to private and family life, and if it did, that the interference had to be proportionate to the requirements of a democratic society. This test was created in the English case of R (Razgar) v Home Secretary in 2004. Discussing the application of this test, the judge referred to other decisions of the court which looked at the impact of deportation orders on children. He said that there was strong precedent from the cases of Oguekwe v Minister for Justice and E & Anor v Minister for Justice that the Minister had to take consideration of the best interests of the child in coming to the conclusion to make a deportation order. He noted that the Minister had to consider all matters put before him by the parties but was not obliged to make enquiries outside of the documents submitted to him. 

The judge discussed the impact of the UN Convention on the Rights of the Child, which has been ratified by Ireland but not implemented into Irish law. He came to the tentative conclusion that the Convention was applicable in situations where there was no conflicting principle of domestic law. He held that because there was no conflicting principle of law in the Immigration Act 1999, that the Convention was applicable in immigration cases. Article 3 of the Convention provides that decisions affecting children shall be taken by reference to the best interests of the child. In view of the number of children and the age range and the varying impacts deportation might have on them Mr Justice Mac Eochaidh came to the conclusion that the deportation should be restrained. 

The judge did not draw any conclusions about the constitutionality of s3 of the Immigration Act 1999.

Brophy Solicitors

EUTR and Dependent Family Members

CASE SYNOPSIS:

Secretary of State for the Home department V Muhammad Sazzadur Rahman, Fazly Rabby Islam and Mohibullah Rahman – Opinion of the Advocate General delivered March 27th 2012

 

We are frequently encountering cases concerning EU Treaty Rights Law relating to other family members and or so called permitted family members. The concept of dependency is often at the core of such cases many of which include dependent siblings of the spouse of the EU National who has already been permitted to reside in the State in conformity with Directive 2004/38EC. Many of our cases have proceeded to review stage for failure to establish that the non EEA family member is a ‘qualifying or permitted family member’ in accordance with the Directive. In other words, dependency has not been established. One of our cases concerns a 23 year old male suffering from brain damage pursuant to a life threatening operation he underwent in the State. His elder brother, who is the spouse of an EEA national lawfully residing in the State, together with his wife fully support the applicant both financially and emotionally. His medical bills and expenses are fully discharged by his brother and his brother’s wife who provide accommodation, money and full-time care to the applicant who remains unwell. We are currently awaiting a decision on whether the applicant will be permitted to remain in the State as a family member or a dependant on the EEA national and as a dependant on the spouse of the EEA national.

 

 

We draw your attention to last year’s decision of the ECJ in Rahman concerning the notion of a ‘dependant’ and Article 3 (2) of the Directive:

 

This case reviewed the conformity of UK legislation with Directive 2004/38EC.

 

The case involved a Bangladeshi national who married and Irish national who was working in the UK. His brother, half brother and nephew applied for residence permits in the UK as family members of a national of an EEA state.

 

Their original application was rejected by the Secretary of State for the Home Department (SSHD) and they appealed to the immigration judge who granted the application on the basis that they were dependants and directed that their case be considered in line 17(4) of the 2006 regulations which provides for the decision maker to exercise their discretion in such matters. The SSHD sought reconsideration of the case by the upper tribunal which decided to stay the proceedings stating that whilst the case raised a factual question as to whether or not there existed a situation of dependency, it also raised legal problems, the resolution of which required a clear understanding of the scope of the provisions of EU law. A number of different issues were raised.

 

 

The core issue was whether or no article 3(2) of the Directive requires a Member State to make legislative provision to facilitate entry to and or residence in a member state to the class of other family members who are not nationals of the European Union who can meet the requirements of article 10 (2) of that Directive?

 

Article 3(2) of the Directive stipulates that:

 

“ Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

 

Any other family members, irrespective of their nationality (…) in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union Citizen.

 

The Partner with whom the Union Citizen has a durable relationship, duly attested, The host Member State shall undertake and extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. “The court held that the ‘fundamental right to private and family life may, in principle be relied on by all categories of person mentioned in Article 3(2) of Directive 2004/38.’ The Court concluded that in this case Mr Rahman’s private and family life had been impaired by the failure of the UK authorities to issue residence permits to his brother, half brother and nephew.

 

It so follows that Art 3(2) ‘must be interpreted as requiring Member States to adopt the measures necessary to facilitate entry and residence in their territory for all persons coming within the scope of that provision. Additionally, the primary law of the EU ‘precludes a member state from refusing a national of a non member country who comes within the scope of that provision residence in its territory in the case where that national wishes to reside with a member of his family who is a Union citizen, where such a refusal has the effect of unjustifiably impeding the exercise of the Union citizen concerned to move freely within the territory of the member states or causes disproportionate impairment of his right o respect for private and family life.’

 

The Court surmised that Article 3(2) of Directive 2004 /38 must be interpreted to the effect that:

 

• It precludes national legislation which limits the scope of that provision to other members who resided in the same state as the Union national before the Union national came to the host Member State
• The notion of ‘dependent’ does not imply that dependency existed shortly before the Union national came to the Host Member state and..
• It does not preclude national legislation which makes entry and residence for a national of a non-members country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

 

 

We will keep you posted as to our further developments on cases concerning dependent family members of EU nationals.

Picking on Foreign Students

The Economist this week highlights the picking on foreign students in the UK as a case of xenophobic populism ahead of the recent cabinet reshuffle. Immigrants once again seem to be the political football and the ones to blame. We hope the same narrow approach is not pursued here for example in the review of the Student Work Concession (see below) and that we continue to recognise the value of having foreign students study and work in Ireland.

The UK Border Agency last month decided to withdraw the London Metropolitan University’s licence to sponsor students from outside the European Union. This means that the University is removed from the register of licensed sponsors and students from outside the European Union are no longer allowed to study at the university.

The University has since issued a legal challenge to the withdrawal, refuting claims of systematic failings and stating that they have conducted stringent checks on their students in order to meet with the published requirements. They also point out that there have been at least 14 substantial changes to UKBA's requirements in relation to their students in the last three years.

The impact of UKBA’s revocation is stark:  up to 2,600 continuing international students are affected and may face deportation if they cannot find an alternative sponsor by 1 December 2012.

The dispute between UKBA and London Metropolitan can be seen as part of a wider tussle between the UKBA and international students as the UK government seeks to meet its election pledge of reducing immigration to the “tens of thousands” during their term in office. The most recent figure on net inflow migration into the UK stood at 216,000, so there is some way to go.

The only way the UK can realistically reduce the number so drastically is by imposing sweeping  restrictions on foreign workers and students who are the very immigrants that they need to hold on to. They make a valuable financial contribution to the UK economy and are most likely to make a beneficial impact; they keep several higher education institutions afloat and help make the UK a global player in third level education.

The Economist cites a government report that estimates earnings from foreign students to be around £7 billion a year and that this could double by 2025. The revocation of the license held by London Metropolitan could result in as much as a £30 million annual loss to the institution alone.

The UK approach, as the Economist argues, is a nasty piece of populism driven for the most part by political priorities.

Recent changes in our own immigration system have seen a tightening up of the student visa regime (see our previous  blog posts on this issue). According to INIS, in 2011 the number of non-EEA national students registered to study in the State was approximately 32,500.Broken down by education sector, 37% of students were pursuing Higher Education (Degree Programme) study, 29% were taking language courses, 23 % further education (non Degree) courses and 11% other (e.g. accountancy, secondary school).There is reported to be a decrease of around 8% in the numbers of international students in 2012.

The Department of Justice have posted their intention to review the Student Work Concession – this permits full time non-EEA students to work 20 hours per week during term time and 40 hours per week outside that. While INIS states there are no immediate plans to change this, they do not that the current economic climate necessitates further analysis of this concession.

We would guard against any change to the current concession and any further tightening of the student visa regime. Our own experience is that the work concession provides an essential means for students to meet the significant costs of pursuing studies in the State as a non-EEA student and to meet basic costs of supporting themselves through their course of study. These students work hard, they pay their taxes, they have valid permission to remain in the State. Any review must therefore be properly informed by the many benefits of attracting foreign students to Ireland and not any political populism borrowed from the UK.

Brophy Solicitors

12.09.12

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: are foreign students visitors or migrants?

A video report released by BBC recently discusses the on-going governmental debate about whether or not international students studying in the UK should be considered immigrants or visitors. Right now, the official answer is immigrants, but there is talk of changing it to visitors.

The Business and Education Department supports the change in status of international students from immigrants to visitors. They argue that students arrive in the UK with the intent to study for a few years and then return to their home country upon the completion of their degree. The Department recognizes the significant economic contribution that international students make to the economy—currently estimated at £8 billion per annum, and that figure is expected to rise. The Department also raises concerns that other countries such as the US, Australia, and Canada are aggressively campaigning for foreign students to come to their countries to study, and the UK recognizes that it is falling behind.

The Home Office, however, is dead set against the change. They believe that international students should be classified as immigrants. They acknowledge the figure that 20% of international students never actually leave the State following the completion of their degree, for a number of reasons, including marriage to a UK national, a work permit, or other strong ties to the State. They are, without question, immigrants, and the Home Office believes that classifying these students as anything other than immigrants would be “fiddling the figures.” It is surprising, however, to note that the Home Office is against the change. The UK tries to keep their net inward migration totals below 100,000 per annum, whereas the level is currently at about 250,000. A change in status of international students would lower this number significantly, meaning that the UK would be more on target with their net inward migration goals, but the Home Office allows that such a change would be simply manipulating the data. Critics say that classifying international students as visitors may deter them from applying to study in the UK, but the Home Office rejects this argument, saying that there has been a 9% increase in foreign applicants in the past year.

Brophy Solicitors

http://www.bbc.co.uk/news/uk-politics-18856411

PARENTS OF ROMANIAN AND BULGARIAN NATIONALS WHO ARE PARENTS OF IRISH CITIZEN CHILDREN

We posted a recent blog in respect of a change of policy concerning the right to work for Romanian and Bulgarian nationals who are also parents of Irish citizen children.  As of the 28^th February 2012, such persons shall not require an employment permit to work in Ireland. 

A number of our clients who had applied for employment permits or who had applied to be registered as self-employed with the Department of Jobs, Enterprise and Innovation have received letters from that Department stating that they are entitled to work in the State without an employment permit.  The letter also states that it should be both that Romanian/Bulgarian nationals and their Irish citizen child must be resident in the State as a family unit.

We have also been advised that our applications pending with the Department of Justice and Equality in respect of Romanian/Bulgarian parents of Irish citizen children shall be determined this week and we expect a similar letter shall issue from that Department authorising our clients to work without the need to apply for a permit.

We welcome the Minister’s approach to resolving such cases, which would have no doubt ended in litigation in respect of such person’s entitlement to work in the State.  We shall advise our readers as to the Department of Justice and Equality’s precise position as soon as possible.

Brophy Solicitors

04.05.12