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

ROMANIAN AND BULGARIAN CITIZENS AND RECKONABLE RESIDENCE

Recently we have been working on a case involving the disputed reckonable residence of a Romanian national for the purposes of obtaining an Irish passport for the applicant’s child.

Following Romania’s accession into the EU in 2007 our client was eligible to reside in the State. Having resided in the State legally between 2007 and 2013 the applicant should have been eligible to obtain an Irish passport for his daughter. However, this was denied by the Passport Office which claimed that the client was not lawfully resident due to having worked without a work permit for a number of years. While it is recognised that the father may have breached employment law, his residence was in fact valid under EU law and thus Irish law. The High Court proceedings have been issued on the contention that the Passport Office was erroneous in its decision as our client did not fit into any of the specified ‘reckonability’ restrictions in S6B(4) of the Irish Nationality and Citizenship Act 1956.

We are pleased that the High Court has granted to leave to bring a judicial review against this decision. We will provide further update in due course.

 

Karen Berkeley

Brophy Solicitors

Ireland will not benefit from EU Migration Law advancements

The Irish Presidency has advanced important developments to complete the final two legislative measures on the processing of Asylum Claims forming part of the Common European Asylum System (CEAS).

CEAS is provided for in Article 78 of the Treaty on the Functioning of the European Union. It provides that the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection in accordance with the principle of non refoulement and the 1951 Geneva Convention on the Status of Refugees.

The Irish presidency programme outlined the objectives to secure agreements in relation to the Student and Researchers Directive, Seasonal Workers Directive and the Intra Corporate Transfers Directive. The President also aims to establish the Asylum and Migration Fund Regulation, an instrumental part of an overall framework for EU financial support in the field of international security, to contribute to the operational costs at national and EU level of border control.

Proposals for compromise texts on the recast of the Asylum Procedures Directive and the Eurodac Regulation have been approved by Member States. The adoption of these measures remains subject to the approval of the European Parliament and the Council.

Minister for Justice, Equality and Defence, Alan Shatter, Chair of the Justice and Home Affairs Council stated in relation to these developments:

"Completing the Common European Asylum System will be an important milestone towards ensuring the consistent and equitable treatment of asylum seekers irrespective of the Member States in which they present their asylum application. 327,345 asylum applications were received in the EU in 2012, an increase of 7.8% on the previous year. It is vitally important that the Union has a system that ensures that procedures for processing applications are both fair and effective but also robust and not open to abuse. I am pleased that the Irish Presidency has been able to advance discussions with the Parliament and we are now hopeful of reaching an early agreement on this basis."

However, whilst it is evident these developments mark an important progression in the area of migrant reform, it must be noted that Ireland has ‘opted out’ of participating in the revised laws which form part of the CEAS, and not signed up to others including the Reception Conditions Directive. Only Ireland and Denmark failed to sign up to the latter, however unlike Ireland, Denmark has provided the right to work in separate legislation. Consequently Ireland will not benefit fully from this important milestone towards ensuring the consistent and equitable treatment of asylum seekers, placing Irish Immigration laws out of line more now than ever with that of other European countries. 

For information on this item and further developments of the Irish Presidency see: http://eu2013.ie/news/news-items/20130327ceaspr/

Brophy Solicitors 

04.04.13

BULGARIAN AND ROMANIANS OBTAIN FULL ACCESS TO LABOUR MARKET IN IRELAND

On the 20^th of July, 2012, in a statement from the Department of Jobs, Enterprise, and Innovation,  the Minister officially granted Romanian and Bulgarian nationals access to the labour market in Ireland. Originally, these restrictions to the Irish labour market were set to be lifted  on 1^st January 2014, following a seven-year transition period that allowed EU member states to prepare for Bulgaria and Romania’s full adoption of EU law on free movement of workers.

After reviewing the restrictions that were previously in place before the 20^th of July, the Government discovered that “in 2003 some 3,600 permits were sought from nationals of both countries [Romania and Bulgaria], declining to just over 50 applications in 2011.” Also, the population of Bulgarians and Romanians living in Ireland has declined by 3,000 between 2008 and 2011. The Government decided that continuing restrictions in light of these figures is questionable, and has decided to bring forward the transition date from 1^st January 2014 to 20^th July 2012.

There are numerous benefits to eliminating the restrictions, namely fostering positive relations between Ireland and the two countries, as well as with the European Commission and the other member states, since only 9 of the 27 members retain the restrictions on Bulgarians and Romanians in the labour markets. Also, students and self-employed or self-sufficient nationals from the two countries already have access to the labour markets in Ireland anyway.

Questions have been raised in an article from the Immigrant Council of Ireland about whether or not time spent in Ireland before the free access to the labour market restrictions were lifted counted as reckonable residency, but so far, the decisions by the department have been inconsistent. We will have to watch to see if they develop a line of authority with their judgements in this matter.

The United Kingdom has decided to retain its restriction on the labour market for Bulgarian and Romanian nationals. In a report from the UK Border Agency on the 23^rd November 2011, Minister Damian Green announced that the restrictions will be extended until the end of 2013, fulfilling the full seven year transition period after the initial acceptance of Bulgaria and Romania to the EU in 2007. This means that in order to work in the UK, nationals from those two countries will be required to seek permission from the UK Border Agency. The Border Agency expressed a commitment to reduce employer’s dependence on migrant workers, and a potential negative impact on wages nationwide.

Brophy Solicitors

30.07.12

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12