NEW CHANGES IN EMPLOYMENT PERMIT APPLICATIONS

The Irish Immigration Blog

The Department of Jobs, Enterprise and Innovation has set out an updated list of changes relating to employment permits. 

‘Following a review of the Employment Permits system and the current skills needs in the labour market, Employment Permits policies have been updated to ensure a balanced and renewed policy rationale for Employment Permits to facilitate access to skilled workers where there are skills shortages in the Irish and EEA labour market.

The primary changes are outlined below and will be made effective for all applications considered from 10th April 2013 onwards. It should be noted that any applications received before 10th April will be processed in line with the revised rules which are inherently designed not to disadvantage such applications.

1. The Highly Skilled Occupations List (previously referred to as ‘eligible occupations list for Green Cards’) has been broadened and updated to correlate with known shortages of key skills in the labour market. Whereas before eligibility in respect of a particular job title was confined to a particular sector, the highly skilled eligible occupations are now permissible across all sectors in recognition that a particular skill in short supply will be experienced across all sectors which require that skill.

2. The labour market needs test i.e. the requirement for advertising with the Department of Social Protection’s employment services (previously referred to as FÁS) has been reduced from 8 weeks to 2 weeks and the requirement to advertise in a national newspaper has been reduced to 3 days. Whereas before there was a further requirement to advertise in a local newspaper there is now an option to advertise in a local newspaper or on a job’s website for 3 days.

3. The Ineligible Categories of Employment for Employment Permits list of occupations has been updated to cater for particular shortages in relation to certain occupations involving the necessity of being able to communicate in a non-European Economic Area language.

4. The employment permits applications forms have been amended to reduce the requirements to submit additional documentation. In tandem with this there will be greater focus on the random checking of employment permits by the National Employment Rights Authority (NERA) to ensure adherence to the relevant legislation.

5. An initiative has been taken by this Department and the Department of Justice and Equality to provide a more coherent service across both the Employment Permits regime and the Visa regime. Certain categories of non-EEA immigration permission holders, who have been offered employment in an occupation included in the Highly Skilled Occupations List will now be allowed to apply for an Employment Permit, whilst already legally residing in the State. Also the Department of Justice and Equality (INIS) intends to facilitate job interviews for highly skilled candidates and provide measures to permit persons to be employed in the State on a short term basis i.e. between 14 and 90 calendar days. Further details are available on the Department of Justice and Equality (INIS) website.

6. Current holders of Intra-Corporate Transfer Provider Employment Permits and Contract Service Provider Employment Permits can now apply for other types of Employment Permit subject to the normal criteria.

7. The current employment permits website has been updated to improve information and customer service.

8. For IT graduates of foreign colleges and for technical or sales support roles with non-EEA language requirements, the remuneration threshold is reduced from the current €30k p.a. to €27k p.a. in respect of employment permits applications under the Work Permits category.

9. To assist clarity, income requirements will be based on ‘remuneration’ rather than ‘salary’ for all types of employment permits where items of remuneration are demonstrated on payslips or P60s.

10. The appeals process will be more efficient and transparent and will now, instead of reviewing the application afresh, only reference the stated reasons for a refusal as provided in a decision to refuse.

11. Changes have been made to our internal procedures to reduce the time it takes to process applications with a commitment to speeding up processing by at least 10 days.

12. To facilitate queries in relation to the new procedures, the Employment Permits call centre will extend its normal opening hours.

These changes mark the beginning of a programme of change now underway. It is intended that over the course of the next 6 months further enhancements will include:

• the use of a single application form which will electronically guide the applicant through the form;

• migration of website information to a new platform and better information linkages with the relevant aspects of the Department of Justice and Equality’s visa regime;

• new Department of Justice and Equality pilot initiatives to be announced in the Summer;

• online querying of an Employment Permit application’s status; and

• expanding the availability of the telephone Call Centre.

In the medium term, the Department also intends to conduct a Business Process Re-engineering review of its processing system in light of proposed legislative changes and to facilitate the development an online applications system.

The changes are engineered to ensure that Ireland has an attractive Employment Permits regime for employers and prospective employees to facilitate access to skilled foreign nationals in areas where there are demonstrable skills shortages especially in the ICT sector. The employment permits regime complements other Government initiatives especially in the education sector aimed at increasing the domestic supply of skilled labour and will therefore be adjusted accordingly over time as and when sufficient domestic supply becomes available.’

Brophy Solicitors

The Irish Immigration Blog

Delays on Issuing Temporary Stamp 4 and EU FAM Five-Year Cards

We have noted considerable delays within the EU Treaty Section which is a cause for concern for many of our clients. Rather than decisions on their applications after 6 months, some have received temporary two month visas and a request for further documents! Original documentation was always returned rather promptly but we have daily requests from clients seeking the urgent return of important documentation which remains with the Department for several weeks. We hope that matters proceed as normal and within reasonable time frames as soon as possible as such delays cause genuine problems for clients who wish to travel, work and maintain their employment in the State.

Revocation of Refugee Status

It has been reported in an article in today’s Irish Times , that Minister for Justice Alan Shatter, recently confirmed in a parliamentary question that 57 people had their refugee status revoked since he took office in March 2011. The Minister cited the main reason for the revocations being the provision of ‘false or misleading information’.  

Theses figures show a substantial increase in the numbers of revocations of refuge status in the recent years. 

Reference is made in the Irish Times article to a case of Brophy solicitors where a man from Darfur had been given refugee status but when he tried to have his family brought over to Ireland. The Minister wrote to him saying he proposed taking away his refugee status as he was found to have changed information on how he got to Ireland. The client provided an erroneous answer in his asylum interview solely with respect of the specific dates on which he witnessed certain attacks on his village and on his fellow villagers. He also failed to provide information in relation to a short period he spent in another EU Member State prior to coming to Ireland and claiming asylum. He instructed that the error was made on account of a number of factors. When interviewed by the Department of Justice official, he was extremely fearful of making any reference to time spent the EU Member State prior to arriving in Ireland as he feared that he would be returned there, believing he would subsequently be removed directly to Sudan where he would face ill-treatment and torture. Furthermore, on arrival in Ireland, he was confused and still experiencing trauma. It was never the intention of the client to fabricate an asylum claim or elaborate his account in any way but rather to protect himself against potential return to Sudan. The only error he made was only with respect of the dates, the entirety of his remaining account was truthful and correct.

Through very detailed written submissions and explanations over an extended period of time, ultimately, the Minister decided not to revoke our client’s refugee status. The case highlights the caution needed in the revocation procedure for refugees.  It is essential that the refugee has access to good standard of legal representation. However, it is questionable whether such applications fall within the remit of the Refugee Legal Service, and often refugees tend to have not option but to instruct private solicitors.  

The grounds for revocation of refugee status are set out in Section 21 of the Refugee Act 1996 . If one of those grounds exist, the Minister has a discretion to revoke the refugee status.  The act directs that the Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

When seeking to revoke the revocation status of an individual, it is noted that following the guidance of UNHCR, when considering cancellation of refugee status, it is a requirement that the decision-maker be sensitive to the particular circumstances surrounding the application for asylum.

 ‘UNHCR Note on Cancellation of Refugee Status’, paragraph 23,:

When establishing whether there was an “intention to deceive”, decision-makers must be sensitive to the special circumstances which surround applications for asylum. Traumatic experiences, time lapse or the intensity of past events often make it difficult for an applicant to speak freely and provide a full factual account without inconsistencies or confusion. Minor omissions or inaccuracies, vagueness or incorrect statements, which are insubstantial, should not be used as decisive factors undermining an applicant’s credibility, much less deemed sufficient to establish an “intention to deceive”. … In addition, it should be noted that cancellation does not serve as a “punishment” for incorrect statements.’

‘The applicant must have presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore, on balance, capable of being believed …

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 36:

Cancellation may be justified only if the (new) evidence, had it been before the determining authority at the time, could have supported a negative finding with regard to the applicant’s credibility and/or the well-foundedness of his or her fear of persecution for a Convention reason, or if it would have been sufficient to establish the existence of an exclusion ground provided for under the 1951 Convention.’

Due regard must also be given in respect to whether the revocation could be considered as a proportionate action. Any decision to revoke refugee status which could raise grave human rights concerns and be considered as  being  highly prejudicial to the individual, would lead to a potential breach of their human rights protected under the European Convention on Human Rights (ECHR). This too is reflected in the UNCHR.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph  8:

 ‘Whenever a final administrative decision is reopened with a view to its possible invalidation, the general principles of legal certainty and protection of legitimate expectations, or “acquired rights”, need to be reconciled with requirements stemming from the principle of legality … the principle of proportionality requires that the effects of invalidating a flawed decision for the person concerned be taken into consideration. The guarantees and safeguards of procedural fairness also apply.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 9:

‘In summary, irrespective of the reasons for reopening a refugee’s case, the invalidation of refugee status ab initio may be lawful only if there are grounds for cancellation, supported by adequate evidence; if the consequences of cancellation for the individual concerned are clearly not disproportionate and of a seriously prejudicial nature; and if the decision to cancel is made in due observance of the guarantees and safeguards of procedural fairness.’

Brophy Solicitors

22.1.13

Amnesty International urges Europe to act to help refuges fleeing Syria

Amnesty International has called on EU leaders to take the necessary steps to help the hundreds of thousands of people fleeing Syria.

Over 350,000 refugees have registered or are awaiting registration in Syria’s neighboring countries- namely Turkey, Lebanon, Jordan and Iraq.

 It has been predicted that over 700,000 refugees will have fled to Syria’s neighbors by the years end. Conversely, the EU has only received 16,500 Syrian asylum seekers. 

Amnesty have advised that the EU implement the following measures to alleviate this crisis:

•    Ensure access to protection and fair asylum procedures for all Syrian asylum-seekers arriving in the EU

•    Ensure no refugees are returned to Syria until the situation has stabilized and their safety can be assured

•    Agree a common EU approach towards determining refugee claims

•    Adopt a generous interpretation of international protection

•    Lift obstacles to safety, such as visa requirements and overly burdensome family reunification procedures

 www.amnesty.org/en/news/europe-act-now-help-refugees-fleeing-syria-2012-10-24

Brophy Solicitors

30.10.12

UN High Commissioner for Refugees criticizes our Asylum system

Antonio Guterres, UN High commissioner for Refugees has said that Ireland would benefit from a simpler asylum process. Ireland has one of the lowest numbers of successful asylum applications in the EU.

He was in talks last week with the Department of Justice and Equality  that  “in relation to potential improvements in the Irish asylum system, namely the possibility, through legislation, of the simplification of procedures”.

He mentioned that sought also to “improve the quality of the decisions”.

He noted that “In Ireland, I would say that the tradition is of a very strict approach to these things and what is now being discussed is how to have a more nuanced approach.”

In addition he expressed “deep gratitude and appreciation” of Irelands continued support of his office despite  its economic difficulties.

http://www.irishtimes.com/newspaper/ireland/2012/1012/1224325187869.html

Brophy Solicitors

19.10.12

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

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

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

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

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

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

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

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

Brophy Solicitors

28.08.12

NEW 2 YEAR EXTENSION FOR STUDENTS RESIDING HERE SINCE 2004

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

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

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

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

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

The following residency conditions will apply to the probationary period –

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

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

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

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

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

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

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

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

Brophy Solicitors

24.08.12

Special vulnerabilities of asylum seeking children brought to light in Special Rapporteur’s Report

The Irish Refugee Council, on 9^th August 2012, discussed a Special Rapporteur’s Report, discussing the specific difficulties that face children seeking asylum. Specifically, the Report highlights the difficulties of raising children in Direct Provision, the state-sponsored accommodation provided for asylum-seekers. Problems include “over-crowding, institutionalised poverty,” and the inability of parents “to provide their children with a normal family life.”

Children also face a higher risk of abuse, since poor conditions are rampant, the accommodation is crowded, and parents have little control over who interacts with their children.

The Report calls for research into the specific vulnerabilities that children of asylum seekers face, and the IRC celebrates this decision. The IRC also calls for a reform of Direct Provision, with the needs of the children addressed.

Brophy Solicitors

23.08.12

http://www.irishrefugeecouncil.ie/news/special-vulnerabilities-of-asylum-seeking-children-brought-to-light-in-special-rapporteurs-report/1297

Theresa May blocks Chinese visa changes over security fears

An article from the UK Guardian on Thursday, 16^th August, discussed how Home Secretary for the UK Theresa May blocked an attempt to make it easier for Chinese visitors to obtain visas to visit the UK. She argues that it would “pose a national security risk,” and she blamed poor visitor numbers on “tourism chiefs not promoting Britain’s natural beauty properly.”

Culture secretary Jeremy Hunt revealed an £8m plan following the Olympics to triple the number of Chinese visitors to Britain by 2015, but May has stated her opposition to this plan. Currently, Chinese visitors are able to obtain an EU visa that allows them to visit 25 EU countries, but they need a separate visa to enter the UK. Hunt’s plan would make obtaining a UK visitor’s visa much easier for the Chinese visitors, but May has argued that “visa checks in Europe ‘do not match the UK decision quality’” and claimed that “British visa controls are a ‘key tool in protecting the public against significant harm.’” She cites national security as one of her main motivations for rejecting the plan, fearing that allowing more Chinese nationals to visit the UK would lead to more crime and a reduced sense of national security.

The article concludes by admitting, “The government is particularly keen to attract Chinese tourists because they are estimated to spend an average of three times more than other overseas visitors, but France receives 25-50% more Chinese tourists than the UK.

Brophy Solicitors

22.08.12

http://www.guardian.co.uk/politics/2012/aug/16/theresa-may-blocks-chinese-visa

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

APPLICATIONS FOR PERMANENT RESIDENCE CARD AND THE REQUIREMENT OF CO HABITATION

We act for many clients who are making applications  for permanent residence cards pursuant to of Directive 2004/38/EC and the EC (Free Movement of Persons) (No 2) Regulations, 2006 as amended.

Many of these applications are submitted on the basis that the applicant complies with the criteria of Article 16 (2) of the Directive – that is that he or she has resided legally with the Union citizen in the State for a continuous period of 5 years.  Similarly, Regulation 13 (6) refers to that family member “who has resided with the Union citizen in the State”

We submit that the requirements if Article 16/Regulation 13 is that both the EU and the non EU family member reside in the State for a five year period, but not necessarily that they co habit for the give year period. However, the Department of Justice continue to seek evidence that the couple resided together in the same household for that period.

We would refer to the case of PM (Turkey) [2011] UKUT 89 (IAC) in which the Upper Tribunal found that in the light of its objects and purpose Article 16(2) of the Citizens Directive is intended to afford all family members the right of permanent residence after five years residence in the host state where the EEA national has resided, whether or not they had actually cohabited throughout that period.

We would also point out that Article 7 (2) (and Regulation 6(3) (a)) both direct that a non EU spouse of an EU national shall be entitled a residence card if the EU spouse is exercising his/her EU Treaty Rights. Neither the Directive nor the Regulations direct that they be co habiting in order to be entitled to the initial five year residence card. Therefore, if the applicant has complied with the terms of Article 6/Regulation 6 for the period of their marriage, regardless of whether they were co habiting or not, it would be illogical to find the non EU citizen is then ineligible for the permanent residence card.

These points were assessed by Mr Justice Cooke of the High Court in the case of  Mohamud and Muna Abdulle Ali vThe Minister for Justice,  judgement dated 18^th February 2011.

Mr Justice Cooke held that requesting documentation that Ms. Ali had lived resided with Mr Mohamud was unlawful and unnecessary, since no such requirement had been directly stipulated in the Regulations or the Directive. Regulation 10(2) (b) even states that a non-EU national may retain the right to reside even in the event of divorce or annulment if the couple had been married for three years, including one year in the State. Mr Mohamud and Ms. Ali qualify under this stipulation as well. Therefore, Justice Cooke ruled that it was not a requirement that the non-EU national be residing in the same house with the EU national in order to qualify a residence card based on their EU Treaty Rights. The Court saying that it was a requirement is a mistake in law, and Justice Cooke quashed the refusal order.

Brophy Solicitors

10.08.12

Immigration Backlog: New Warning from watchdog

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

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

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

Brophy Solicitors

02.08.12

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

Migrants Petition for Regularisation

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

Brophy Solicitors

31.07.12

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

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

ZAMBRANO - SUCCESSFUL OUTCOME FOR FAMILY RESIDING OUTSIDE THE STATE

We are delighted for our clients, a Syrian family of five residing in Saudi Arabia, who have all been granted visas to reside in Ireland on the basis of our submissions under the Zambrano ruling and under the Treaty on the Functioning of the European Union.

The two parents of a young Irish citizen child who had been granted Irish citizenship wished to relocate to Ireland based on the fact that they were prevented from returning to Syria.  Their life in Homs had been completely destroyed and the father of the family found temporary work  in Saudi Arabia. The family’s initial application was refused as it was held the Irish citizen child had no connection with the State having never resided here (she obtained her Irish passport based on her birth in Belfast.)  The case was considered under Article 8 of the ECHR, under the proportionality test and the Constitution but the deciding officer failed to consider the child’s rights as an EU citizen and her rights established under the ruling in Zambrano.  Within a matter of weeks the application was re-considered on appeal and the family will enter the State this year.

In a separate but related case, a Syrian family was recently granted permission to enter the State on visitor visas.  The family of two parents of two Irish citizen children left their home in Homs, Syria.  They secured a visitor visa within a matter of weeks and applied for residency under Zambrano.  Their application was made in October 2011 and was decided favourably in June 2012.  

We note that a huge volume of residency applications relying on the Zambrano case are still pending and 9-12 months appears to be the average processing time.  We will keep you updated as to any further developments in this regard.

Brophy Solicitors

30.07.12

Lack of Legal Advice given to Illegal Immigrants

In an article in the Irish Independent last Tuesday, the 10^th July, the author describes how many illegal immigrants detained in Northern Ireland are not receiving proper legal council. Reports have shown that the number of people being detained has risen by almost 75% since the stricter border patrol enforcement, known as Operation Gull, was introduced six years ago. While many of those detained are illegal, thus making it within the rights of the state to deport them, a good number have legitimate claims to stay in the state, and they are not receiving proper legal representation to ensure that their rights are being recognized. They arrive without intending to break immigration laws; they have legitimate reasons for wanting to come to the UK. They just lack the language, agency, and voice to make their situations known on a legal stage.

Not only that, but there is a growing concern of ethnic profiling at these ports of entry, and that many people who are being detained without consideration of their situation are being denied their rights because of their ethnicity.

Brophy Solicitors

18.07.12

http://www.independent.ie/breaking-news/national-news/concern-at-illegal-immigrant-advice-3165580.html

Deportation Order for a Chinese National

An article in the Irish Times from Wednesday, 18^th July, reported that a Chinese national, Qing Wu, had lost his High Court challenge. He had received a deportation order in 2009, but he had changed addresses without notifying the Minister, so his notices went unread. He attempted to challenge the deportation order, owing at least in part to the fact that he has an Irish-born child and part because he had not received the deportation orders, but the case was ultimately unsuccessful. The onus was on him to notify the Minister if his circumstances changed. The author reports that by the time the case came to be heard before the High Court, Mr Wu was on a plane to Frankfurt, where he will be further escorted to Beijing.


Brophy Solicitors
18.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0718/1224320307476.html

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

Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12