A Need for Reform

The much needed reformation of the Irish Asylum system has once again been thrust into the spotlight with the recent decision of M.M v Minister for Justice, Equality and Reform, Attorney General.

Under current legislation, the European Communities (Eligibility for Protection) Regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, s/he will be informed that the Minster proposes to make a deportation order. S/he will have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. Subsidiary protection is available to a person who does not qualify as a refugee but if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

 On 22^nd November the European Court of Justice held in the case of M.M v Minster for Justice, Equality and Reform, Attorney General, that Ireland’s system of subsidiary protection does not comply with the right to be heard, a fundamental principle of European Union Law. 

Applicants for subsidiary protection make a paper application to the minister, who on the basis of this application and asylum makes a decision. The government argued as the applicant has a right to be heard in the application process, it is unnecessary to hear the applicant again in the subsidiary protection procedure.

The Court of Justice firmly rejected this argumentation. The Court noted as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has the right to be heard in the context of both procedures.

Ireland is in fact the only EU country not to have a single asylum and subsidiary protection procedure. In Ireland, an applicant must first apply for asylum – a process which may take years, and receive a firm rejection of their asylum before qualifying as eligible to apply for subsidiary protection.

The complicated and cumbersome nature of the Irish Asylum application process was also recently highlighted in the decision last month in the Supreme Court case Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The Supreme Court granted injunctions restraining the deportation of a Nigerian woman and her five year old Irish-born son while they challenged their deportation order and a ministerial decision refusing them subsidiary protection. Overturning the decision of the High Court, the Supreme Court found that the deportation order constituted a disproportionate interference in the family life of the young boy who knew no other country than Ireland. The Asylum process of this country was held to be the blame for the amount of time the family had resided here.

Brophy Solicitiors

30.11.12 

The Mystery of the "Stamp 0"

We are confused and concerned about the application of the new residency “Stamp 0” and in particular, the recent grants of this stamp to two clients who are dependent family members. On reading the guidance, it appears that a grant of stamp 0 to such dependent family members is inappropriate and misguided.

According to INIS, the new stamp was created in December 2011 as our blog post reported. It is described as a “low level immigration permission” that permits individuals to remain in the State only for a “specific, temporary and limited purpose”. The guidance explains that the holder cannot work or engage in any business or trade without specific permission, they must be of independent means or fully supported by a sponsor in the State, and finally the holder is not entitled to receive any State benefits and must have private medical insurance.

The guidance goes on to give examples of the types of people who may be eligible for this mystery stamp. They include a “service provider” sent to Ireland by an overseas company to carry out a particular task. Which is confusing, because presumably such a service provider would need permission to work and is therefore not suited to a stamp that specifically stipulates a prohibition on employment. And the stamp is also envisaged for “visiting academics”, who, we also guess are working too. Or are they just on their holidays?

And what is the application process for this mystery stamp? According to INIS, “there will be no specific application process for a stamp 0. “  And what happens at the end of the stamp? It is stated simply that “it is not intended to be a pathway to any more permanent form of migration.”

The guidance is unclear and confusing and this is of concern to us.

We have recently had two clients issued with stamp 0. Both are elderly persons who are wholly dependent both financially and emotionally on their Irish citizen family members who are permanently resident in the State. Such dependency is increasing with age and is likely to continue indefinitely. There is no intention or prospect of our clients returning to their countries of origin. They intend to reside in the State indefinitely, financially self-sufficient and dependent on their families. This much has been categorically stated to the Minister.

We are therefore unclear and concerned as to why a stamp 0 has been issued in each case. It appears, from the guidance, that such a stamp is entirely inappropriate. The clients have categorically stated that they are not here for a temporary or limited purpose. They are here as dependent family members and have an expectation that they will be permitted to settle in the State by applying for some more permanent form of residency, for example citizenship. Yet the guidance on the stamp 0 specifically precludes using the stamp as a pathway to a more permanent form of residency. What, therefore, are the clients expected to do at the end of their stamp 0?

Our expectation for these clients was that they would be issued with a Stamp 3 by the Minister. They would therefore later be in a position to apply for a more permanent form of residency, for example citizenship, relying on their accrual of the appropriate period of reckonable residency on a Stamp 3.

We note that the restrictions that apply to a holder of a stamp 0 tally closely with those of Stamp 3. In fact, there appears to be little difference between the two stamps except for the emphasis in the stamp 0 guidance that it permits only temporary residence for a specific and limited purpose and is not intended to lead to any more permanent forms of residency.  It is unclear therefore whether a period on a stamp 0 will be classified as a period of reckonable residency that would ordinarily accrue towards a more permanent form of residency, such as citizenship. It is this particular aspect of stamp 0 that is causing us unease.

We have therefore written to the Minister to seek clarification on the application of stamp 0. We will also be making a Freedom of Information request in order to obtain the full internal guidelines for deciding officers on the circumstances in which stamp 0 is to be applied. We will keep you updated and ask you to contact us should you have any queries regarding the mystery stamp 0.

Brophy Solicitors

18.09.12 

Shatter defers closure of Galway asylum-seeker centre

We recently reported about the order to close down an asylum-seeker centre in Galway, entitled the Lisbrook Centre (incorrectly referenced in the article as the Lisburn Centre). The Minister for Justice Alan Shatter has deferred this closing order so that he may review the motivations, reports the Irish Times in an article from Thursday, 13^th September.

In earlier articles about the issue, authorities have reported that the centre was ordered to be closed because of a falling number of asylum seekers requiring accommodation in the State, and budgets were tight. However, that does not change the fact that there are still hundreds of asylum seekers depending on direct accommodation facilities such as the Lisbrook Centre while they wait for the determination of their application. The article reports that some have waited for up to four years on the determination of their application, and many have moved up to nine times as they await a decision.

School has just started and many young asylum seekers have begun studying at a local school. They have just settled in and hope to integrate, and the Labour Galway West TD Derek Nolan cited the closure as a “terrible way to treat people.”

Local residents who support the maintenance of the Lisbrook Centre have heavily criticized the closure decision, and they intend to move forward with the planned rally in Galway on Saturday.

Hopefully the Minister reviews the decision to close the centre and quashes it, allowing many refugees who have already suffered unimaginable trials a renewed sense of welcome and security in the State.

14.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0913/1224323959445.html

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

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors

18.05.12

                 

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

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

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

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

The Immigrant Investor Programme:

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

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

The Start-up Entrepreneur Programme:

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

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

Next Steps

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

Irene Carney

irene@brophysolicitors.ie

01.02.12

HIGH COURT CHALLENGE TO MINISTER'S REFUSAL TO PROCESS AFGHAN REFUGEE’S APPLICATION FOR FAMILY REUNIFICATION

This morning, Mr Justice Peart of the High Court granted our client leave to bring Judicial Review proceedings against the Minister for refusing to process and determine his application for Family Reunification in respect of his wife and young daughter. Our client, who is an Afghan refugee, submitted the application for Family Reunification for his wife and daughter in November 2009, some two years ago. 

When we were first instructed on the case in August 2011, we made strong submissions to the Minister that our client had a statutory entitlement to be reunited with his wife and daughter, pursuant to Section 18 of the Refugee Act 1996 as amended. We also submitted that the delay in determining the application was in breach of our clients rights under Irish and EU law, and highlighted previous guidance from the High Court that a reasonable processing timeframe would be between six and twelve months.

To the distress of our client, the Family Reunification Section responded to confirm that his application had been “on hold” since September 2010 because the Minister was investigating his case for a possible revocation of his refugee status. Our client had never been notified of this proposal to revoke his refugee status, or the postponement of this family reunification application. Furthermore, he had no understanding as to what grounds the Minister was making this proposal.  We wrote numerous letters to the Minster Decisions Unit of the Department seeking a copy of the notification of a proposal to revoke and the grounds upon which this proposal was made, but neither were provided to us in breach of the Minister’s statutory obligation pursuant to Section 21 (3) of the Refugee Act 1996.  Meanwhile, the Family Reunification Section continued to refuse to process and determine the application.

 

Our client was initially very reluctant to resolve this matter by way of High Court proceedings, as he previously had to bring a High Court case to challenge the initial refusal of the Minister to grant him refugee status, and that process had taken approximately three years. We therefore submitted a Freedom of Information Application to the Minister in an attempt to find out what reasons the Minister had for refusing to process his family reunification application and proposing to revoke his refugee status. Unfortunately, nearly all the relevant documents were withheld on the basis that an investigation was being carried out.

Our client is understandably distraught by the on going delay of two years in determining his application for Family Reunification. His wife is now pregnant with their second child and they live in very difficult conditions as exiled refugees in Pakistan. The family had hoped and planned to have their child born in Ireland, in which case he or she would be an Irish citizen by birth.  Our client was therefore left with no option but to bring the matter to the High Court to seek an order compelling the Minister to proceed with his application to be reunited with his family.

Despite the fact that leave to bring Judicial Review proceedings has now been issued, we hope for our client’s sake that this matter can still be resolved in the short term. If the Minister provides an undertaking to consider and determine the family reunification application within the coming weeks, and provides our client with a proper proposal to revoke refugee status clearly stating the grounds upon which the proposal is made, there would be no need for the case to proceed to a substantive hearing before the High Court. In this way, lengthy further delays would be avoided for our clients, as would substantial legal costs.

8.11.11

Brophy Solicitors

Special Extension of Permission to Remain for Timed – Out Students from October 1st 2011.

The Minister for Justice has recognised that the current economic climate posed challenges for both Irish citizens who sought employment and for students who wished to pursue a work permit or green card. According to recent guidelines on the INIS website, the Department of Justice will now allow certain categories of ‘timed out’ students to register for a further three months in order to address their immigration status. This concession will apply to non – EEA students whose permission to remain in Ireland expires after October 1^st 2011 where the students were legally resident in Ireland for seven years on January 1^st, 2011 and who have availed of the six month extension on their residence and who had kept their permission up to date. It also applies to students who were resident in Ireland for seven years on January 1^st, 2011 and who have availed of the Irish Third Level Graduate Scheme.

Students shall be permitted to work during the three month concession period as they would be on their academic holidays. However, they will not be permitted to enrol on any further educational course. The ultimate purpose of the extension is to allow these students to address their immigration status or to make arrangements to leave the state. Eligible students can apply for an employment permit or green card during this time without been required to return to their country of origin.

At the end of the three month period, the student will either be classified as a worker with an employment permit (Stamp 1) or, if they fail to secure an employment permit in that time, their permission to be in the state will expire.

This special three month concession will not apply to students who do not meet the above criteria. It will also fail to apply to Stamp 1A holders.

Students who have not kept their permission up to date will only receive the balance of their six month timed out extension. The concession will not apply to students whose permission expires from January 1^st, 2012.

A summary of the Student Regime

The Department of Justice’s current regime for non- EEA students commenced in January 2011. This regime allowed language and non – degree programme students permission to reside in the State for a maximum period for three years and degree programme students were permitted to reside in the State for a maximum period of seven years. A language and non – degree programme student could progress to a degree programme and extend their permitted period of residence, however, the maximum period of residence permitted for any student is seven years.

Some interim arrangements were put in place for non – EEA students who were residing in Ireland before January 1^st, 2011 and who had exceeded the permitted duration of stay as a student because of the commencement of the new rules.

Language and non – degree programme students who had completed their three years and whose residence permission expired after January were permitted to register if they were commencing the second year of a non- language programme. However, the overall maximum limit of seven years residence as a student applies.

Students whose immigration permission expired between January and the 30^th September, 2011 were entitled to six month extension to their permission, where they had exceeded the new time limits. Students could work during the six month concession period on the same terms as during the academic holidays. They could also apply for an employment permit or green card during this time without having to first return to their country of origin.

Degree programme students who had completed the seven years of study and whose residence permission expired after January were permitted to register only if they were commencing their second year of a degree programme. They will be permitted to complete the course.

When the new rules came into force, it emerged that some courses in vocational and business areas did not meet the criteria for degree programme courses here. However, they were validated by overseas bodies. In order to avoid disadvantaging students who had enrolled in these courses in good faith, a temporary arrangement was put in place which would allow these students who had exceeded the three year limit which applied to language and non- degree programmes and whose registration was due to expire to enrol for a course of this type for one year. However, the student was still bound to avoid exceeding the overall seven year time limit. This concession ended on July 1^st, 2011.

Students who could not avail of these options were required to make arrangements to leave the state.

Irish Third Level Graduate Scheme

The Irish Third Level Graduate Scheme allows legally resident third level graduates to remain in Ireland for the purposes of seeking employment and applying for a green card or work permit. A six month permission is available for graduates with a qualification at NFQ level 7 while a twelve month permission is available to graduates with a qualification at NFQ level 8 or 9. This scheme allows legally resident non – EEA third level graduates to remain in Ireland for the purpose of seeking employment and applying for a green card or employment permit. The student may work full time during this period of permission.

The Naturalisation Process, Ireland and the United Kingdom compared

We have recently made submissions to the Minister on behalf of a client who is waiting a determination of his application for Naturalization for a period of over four years and four months. It has been indicated that to us that our client’s application for Naturalization is being considered “in the normal way” with a view to be establishing that he has met the statutory requirements for Naturalization.

We cannot accept this response as reasonable or adequate in the circumstances of our client’s case.   He does not present as a person who would potentially be ineligible for Naturalization pursuant to the Statutory requirements of the Irish Nationality and Citizenship Acts 1956 to 2004. He has lawfully resided in the State for over ten years. He is married to and EU national. He is a highly qualified person, and has always been in employment in this State. He has never come to the adverse attention to the Gardai in the State or any other country.

We recently wrote to the Minister to request to know why is this application taking over twice as long to process as the average application? Why is he being discriminated against compared to the average applicant? What has the Department been doing while processing his application over the course of four years and four months? When can our client expect to complete the processing of this application? We also indicated that we have submitted many applications for  Naturalization whereby the applicant has been found not to meet the criteria of the Citizenship Acts and these applications have been determined in periods of time far less than this client.

It was indicated to us in a responding correspondence from the Citizenship Section that should our client issue court proceedings in an attempt to compel the Minister to determine the application, that he would strictly be pursued for costs. This assertion was based on a number of judgments from the High Court from 2009 and 2010 where it was held that because Naturalization is a privilege, an applicant can not compel the Minister to determine the application  (Nawaz versus Minister for Justice, 29^th July 2009, Bepo v versus Minister for Justice 18^th June 2009, Tabi versus Minister for Justice  16^th April 2010 and Jiad versus Minister for Justice 19^th May 2010  ).

Thus, there is nothing an applicant such as our client can do put continue to wait without any understanding regarding why his application is being treated so unfavourably.

It is interesting to compare the UK Naturalization process.

Currently, the granting of a Certificate of Naturalisation is at the discretion of the Home Office. Applicants are required to be aged 18 years or over, of sound mind, intend to continue living in the United Kingdom or to maintain close links with the United Kingdom, be able to communicate in English, Welsh or Scottish Gaelic to an acceptable degree, be of good character, meet certain residential requirements of five years or three years – with conditions attached to each. Applicants are also required

to have sufficient knowledge of life in the United Kingdom (with the exception of those who are over 65 years of age or are suffering from a long term mental condition preventing them from being tested on their knowledge ).

Applicants are entitled to have an acknowledgement receipt of their application within a number of weeks of submitting the application, and Applicants can accept to receive a determination of the application within a six month period. Applicants may also be required to attend an interview.

The Home Office has recently introduced strict new requirements which potential applicants will be required to meet in order to meet the criteria necessary to be approved. Applicants will now be required to have knowledge of British history in order to pass the citizenship test. Prime Minister David Cameron has noted the fact that the current test examines knowledge about the roles and powers of the main institutions of Europe and the benefits system in the United Kingdom. He is hopeful that the new test will be centred on British history and culture. It is thought that the new rule requiring knowledge of British history may prove to be a significantly more difficult obstacle for those who seek to be accepted as citizens of the United Kingdom in the future.

There is no similar requirement for knowledge of Irish history for Naturalisation in Ireland. Applications are decided upon by the Minister for Justice and Equality, who enjoys absolute discretion. Many of the general requirements are similar to the United Kingdom such as the requirement to be aged 18 or older and of good character. Applicant must intend to reside in the state after naturalisation, make a declaration of fidelity to the nation and loyalty to the state, to undertake to observe the laws of the state and respect democratic values. One is also expected to be supporting themselves and their dependents while living in the state when they make their application.

The great difficulty with the Irish Naturalisation process is that it is the complete lack of  transparency. This allows for blatant disregard for fair procedures like the example of the case above.

Constitutional challenge to establish right of Irish Citizens to the company of dependant Non EEA parents

We have previously blogged about this case when it was first heard before Mr Justice Hogan in July 2011.Over the last two days, the substantive hearing of the case was heard by Mr Justice Cooke. Submissions are now complete, and we must now await the High Court's decision.

The case concerned an Irish citizen couple who have applied for permission to remain in the State for their non EEA elderly parents, who we say are dependant upon them. 

The legal argument was focused on whether Article 41 of the Constitution, which guarantees the protection of the family as the "natural primary and fundamental unit group of society" , extends to include an adult Irish citizen and their elderly dependant parents. We argued that it does, and where dependency exists between the adult citizen and their parents, Article 41 protects the Irish citizen's right to the company of their parents, in the absence of reasonable and legitimate countervailing grounds which the State may raise. The State's position was that Article 41 offered no protection to our clients whether or not dependency existed, because our clients did not constitute a family unit within the meaning of Article 41. In other words, they argued that as an adult married citizen, one can no longer regard one's parents to be part of the family unit as envisaged by Article 41. A second argument was made that the dependency link in our clients' case was not sufficient to amount to dependency in legal terms.

There is no authority in Irish law to date to establish whether a family comprising of two married couples (i.e. the married Irish citizen and the married non EEA dependant parents) derive protection from Article 41, and if so, whether such protection would require the State to grant the dependant parents permission to reside in the State. Therefore, this case was argued on novel Constitutional grounds, and if successful, could establish a very significant new Constitutional right.

We eagerly await Mr Justice Cooke's judgement, and will post a further update at that time.

Brophy Solicitors

19.10.11