A SUMMARY OF THE FINANCIAL RESOURCE REQUIREMENTS FOR FAMILY REUNIFICATION

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

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

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

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

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

The Sponsor is an Irish Citizen

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

The Sponsor is a Non-EEA National

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

Category A sponsors include:

· Green Card Holders

· Investors

· Entrepreneurs

· Business Permission Holders

· Researchers

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

· Intra Corporate Transferees

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

· Full Time Non-Locum Doctors in Employment

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

Category B sponsors include:

· Non Green Card Employment Permit Holders

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

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

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

· 1 child - €506

· 2 children - €602

· 3 children - €703

· 4 children - €824

· 5 Children - €950

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

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

Brophy Solicitors

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

FAMILY REUNIFICATION OF DEPENDENT PARENTS

Recently, we have been granted leave on a number of High Court Judicial Review proceedings against the Minister for Justice and Equality for failure to properly assess applications for family reunification for dependent parents. These cases have involved applicants who are Irish citizens or possess permanent residence in Ireland, and who have Irish citizen children, and have demonstrated the necessary financial means to support their parents so as not to place financial burden on the state. They have also demonstrated that their parents are in fact dependent on them financially, socially and emotionally, many of them having severe medical conditions and health problems, with no viable options for care and support in their home countries. In one particular case, medical evidence was provided confirming that one of the applicant’s parents could not to undertake long haul flights and this information was not considered.

The main issue that has arisen is the Ministers reliance on the INIS’s Policy Document on Non-EEA Family reunification. This document places rigorous hurdles on applicants stating that a “Highly restrictive approach should be taken”, citing the states inability to take on the potential financial liability of elderly dependent parents.

The financial thresholds for a sponsor of one dependent parent is a requirement to evidence earnings of €60,000 gross for the three years preceding the application, and 75,000 gross for inviting two parents.

Whilst our clients have good earnings, and demonstrated a strong ability to financially support their parents, they were unable to meet the high level of finances required.

No consideration was carried out that our clients sought only to acquire a Stamp 0 permission for their dependant parents - it is an express condition of residence that the applicant is not entitled to claim any state benefit.

Disregard was paid to the applicants rights as a family afforded by Article 41 of the constitution, section3 of the European Convention on Human Rights, in particular Article 8, and European Union law. In refusing the applications, the minister failed to asses these protections, stating that the applicants’ rights under Article 8 of the European Convention on Human Rights would be fully considered if, and when, the deportation process is initiated against the second and third named applicants pursuant to section 3 of the Immigration Act 1999. We submit that this failure to fully weigh and assess the applicants rights render these decisions unlawful.

We would also highlight that the INIS policy document is not legally binding, and unfettered reliance may ultimately be unlawful due to its failure to recognise and adequately vindicate the safeguards and protections afforded to permanent residents rights of the family.

 

Karen Berkeley

Brophy Solicitors

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

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

Proposed Changes to Family Reunification Application Processing

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

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

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

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

Qualifications of a Sponsor 

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

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

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

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

Dependency Requirements

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

Eligibility Requirements for Spouse, Civil Partner or De Facto Partner

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

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

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

Elderly Dependent Parents

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

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

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

Irish Citizen Children-Applications for Parental Migration

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

Karen Berkeley 

Brophy Solicitors

UPDATE ON STAMP 0 AND STAMP 3 RESIDENCY PERMISSIONS

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

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

STAMP 0

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

What do we know?

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

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

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

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

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

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

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

STAMP 3

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

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

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

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

Confusion?

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

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

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

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

Naomi Pollock

Brophy Solicitors

Unlawful killing of deportee should be a warning to all States

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

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

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

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

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

 

Rebecca Keatinge
Brophy Solicitors

EUTR and Dependent Family Members

CASE SYNOPSIS:

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

Article 3(2) of the Directive stipulates that:

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

Developments in Family Reunification for Refugees - Abdulaziz Ali Mohamed v Minister for Justice and Equality

Failure of the Minster for Justice to establish ‘an objective yardstick’ in relation to establishing economic dependency of family members, led to the quashing of a refusal of Family Reunification in the recent decision in the case of  Abdulaziz Ali Mohamed v Minister for Equality and Justice, delivered on the 14^th February 2013.

The Applicant arrived in Ireland as an unaccompanied minor seeking asylum from Somalia. He was declared a refugee on 19^th October 2007. This case concerned his application for family reunification with his Mother and four siblings under s.18 (4) of the Refugee Act 1996. The  application was refused on the basis that he had failed to establish that his family were ‘dependent’ on him in the narrow sense of being financially dependent, as it was held the financial support being provided by the applicant did not sufficiently meet the requirements of s. 18 (4).

The Court considered that the Minister must identify ‘some objective yardstick by which dependency can be assessed’. It is inadequate to speculate such a standard in relation to Irish norms. As held in the recent judgment of Ducale & v. The Minister [2013] IEHC 25, ‘financial dependency must be seen as a flexible state of affairs’, of which ‘much must depend on what the contribution provides when received in the hands of the recipient.’ Therefore the Commissioner must endeavour to obtain objective information in order to set out a rational basis for such a finding; no such endeavours were noted in Ducale or the present case.

This decision by Clarke J relies on the decisions of Hogan J in R.X. & Others v. The Minister [2010] IEHC 466, and Cooke J in Hassan Sheikh Ali v. The Minister [2011] IEHC 115, citing that the second most common reason for refusal by the FRU section, that is the refugee’s personal circumstances and prospects in Ireland are such that he/she cannot maintain family members in the State, is in fact an invalid consideration in relation to the assessment of dependency (though potentially relevant to the exercise of discretion should dependency be established).

Clarke J in her conclusion affirmed the need for guidelines in relation to this criterion to be outlined, in order to provide clarity and transparency within the currently ambiguous family reunification process. In her conclusion she held:

 ‘It is not for this Court to set down guidelines as to the exercise of Ministerial discretion under s. 18(4) but a system must, sooner rather than later, stop the haemorrhage of scarce resources in defending flawed FRU decisions and instead ensure that vulnerable refugees do not endlessly pursue futile applications, thus depleting their own financial and emotion reserves. If refugees were better informed on what constitutes dependency and that conditions are de facto applied to family reunification applications, their attentions might be better directed towards obtaining language skills, training, qualifications, work experience and ultimately employment in Ireland before applying again for family reunification.’ [paragraph 28]

From this decision, Ms Justice Clarke makes her opinion clear that:

·   The Office of the Refugee Applications Commissioner must attempt to investigate such cases more thoroughly, in order to provide the Court with a rational basis for a finding such as in the case at hand, entail that the ‘dependency’ is not of an adequate standard to satisfy s. 18 (4).

·   A system needs to be adopted to provide a level of guidance in respect to such applications.

We would submit that many of the Minister’s decisions to refuse family reunification to refugees under Section 18 (4) of the Refugee Act 1996 are flawed, as most turn on the point of dependency. If the Minister does not set down clear guidelines as to what constitutes dependency, applicants are denied a fair procedure and effective remedy. It is of great concern to our office to see the inconsistent decisions made in respect of our client’s applications under Section 18 (4). We call on the Minister to follow through on Ms Justice Clarke’s recommendations, and provide a clear and transparent determination process for refugee family reunification applicants. 

Brophy Solicitors
26.02.13

Tenth Anniversary of the Dublin II Convention

February 18^th was the tenth anniversary of the Dublin II Convention, that is, the EU regulation which identified which state is responsible for determining asylum. It allows a state to return a refugee applicant to another EU country with which they have a connection, no matter how tenuous and regardless of their reason for applying for asylum in Ireland.

 A European Comparative Report has been published entitled, ‘Dublin II Regulation; Lives on Hold’. It is described as a response to significant developments in the area within which the Dublin Convention applies; in 2011, seminal judgments from both the European Court of Human Rights and the Court of Justice of the EU changed the legal framework within this landscape. EU institutions have also recently reached a political agreement on a redraft Dublin ‘III’ Regulation, which maintains the underlying principles of the Dublin system, whilst introducing substantive reforms to the Dublin system, aiming to increase efficiency whilst respecting the fundamental rights of those subject to it. This was a necessary report; comprehensive information on the technical application of the Dublin II Regulation in a large number of Member States has not been gathered since 2006 – very alarming in consideration of the fact that this is a constantly developing area of law.

The Report questions the reasoning behind the Dublin regulations, a system perceived as frequently failing to achieve its objective of identifying a Member State responsible for the examination of an asylum claim. It finds that a harmonised application of the Dublin Regulation is not realistic; there are vast disparities between the methods of application of the binding criteria within Member States. Asylum seekers under the procedure are often subject to less than adequate reception conditions in Member States frequently resorting to the use of detention to secure Dublin transfers. Cooperation between member States is inconsistent, leading to lengthy delays in identifying a responsible Member State, or even no Member State, leading to a situation of ‘asylum seekers in orbit’. Readmission agreements are sometimes implemented by Member States in a manner that results in evading obligations under the Dublin Regulation and under international human rights law, most notably the fundamental right to asylum.

Improvements in the application of the Dublin Regulation alone will not suffice; as long as there is an ‘asylum lottery’ in Europe, the system will continue to create hardship for asylum seekers. The report calls for a harmonised application of EU protection standards, which meet international and regional protection obligations. The Report asserts that the solution ultimately lies in replacing the Dublin Regulation with an alternative system that ensures genuine responsibility sharing and takes into account meaningful connections between asylum seekers and Member States.

For access to the report:

http://www.vita.it/static/upload/201/2013_02_18-dublin-report_web.pdf

Brophy Solicitors 

20.02.13

Increase in EU funding to help countries cope with migration flows

Although the movements of persons into, out of and within each EU State vary, each society shares similar migration challenges and opportunities. The EU is an area without internal borders, therefore migration bears great significance. MEPs voted on 6 February to increase EU money to help these countries cope with migration flows. Overcrowded refugee centres lacking even basic supplies have become a more frequent sight in many EU border-states in the wake of the crisis. The European Parliament adopted crucial proposals that enable an increased co-financing rate for Member States subject to financial support on actions concerning the management of migration flows (European Refugee Fund, the European Return Fund and the European Fund for the Integration of Third-Country Nationals and External Borders Fund).

The proposal:

·         Covers 4 funds making up "Solidarity and management of migratory flows" framework: European Refugee Fund, European Return Fund, European Fund for Integration of third-country nationals and External Borders Fund.

·         Increased co-financing of the migration-related funds for member states included in the financial support mechanisms.

·         Co-financing (part financed by the EU) to increase 20 percentage points to 70%. For countries covered by the cohesion fund the increased rate would be maximum 95%.

For further information, the following link provides access to an interview with Finnish Liberal MEP Nils Torvalds, who is responsible for steering the plans through Parliament: http://www.europarl.europa.eu/news/en/headlines/content/20130201STO05566/html/More-funding-for-refugees-The-way-we-handle-asylum-seekers-is-unacceptable

Brophy Solicitors 

12.02.13