IMMIGRATION DEBATE AT TCD CAUSES CONTROVERSY

A debate entitled “This house believes that Immigration in Ireland has gone too far,” due to be held on 20^th October by Trinity College’s Philosophical Society has been cancelled following a protest from far-left activists which severely threatened the safety of students.

The debate was to be hosted by British National Party MEP Nick Griffin who consequently decided to write a letter of complaint to a number of honorary patrons of the prestigious society such as Sir Bob Geldolf, former Taoiseach Bertie Ahern and Archbishop Desmond Tutu. Mr Griffin has branded the incident as “an attack on free speech.”

The seriousness and the enormous media coverage on the matter has highlighted that immigration remains a controversial subject in Ireland.  

Brophy Solicitors

20.10.11

PROPOSAL TO IMPROVE SOCIAL INCLUSION OF IMMIGRANTS IN IRELAND

In a bid to improve the current Irish Immigration process, new legislation has been proposed by the Integration Centre, which is supported by Atlantic Philanthropies Ireland Ltd, the One Foundation and the Citizens Information Board. The report was created with the aim of tackling racist crime and improving social inclusion of immigrants in Ireland.

The report lists 36 roadblocks to integration in Ireland on matters such as education, politics and healthcare, furthermore it suggests 78 solutions, all of which (bar introduction of intercultural studies into the school curriculum) should cost the state just under €10 million. In the report the Integration Centre also mentions how Irish immigrants are more likely to be unemployed, earn less and are more at risk of poverty.  

Amongst 10 top goals to be fulfilled by October 2012 is the banning of terms such as “naturalisation” and “bogus asylum seeker,” as well as improvements to current Junior and Leaving Cert subjects, which will assist with integration and implementing of intercultural studies. One of the fundamental aims of the report is to promote integration at a young age and so it seems that many changes may be made to our current education system in a bid to tackle the issue early- on.

All in all, if the legislation is implemented this will be a huge development in this sector of our society and a welcome improvement by immigrants who successfully obtain citizenship in Ireland. 

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

ONE TO WATCH! PRELIMINARY REFERENCE ON THE RESIDENCE RIGHTS OF PARENTS

The Upper Tribunal in the UK made a preliminary reference last week to the Court of Justice of the European Union on the rights of residence of parents with children over 21 years who they are caring for. 

In Alarape and anr (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 00413(IAC) (AIRE Centre intervening)  the Tribunal held that the term "child" in Article 12 of Regulation (EEC No.1612/68  (now Article 10 Regulation (EU) No. 492/2011) which guarantees a right of access to education - should be interpreted to include "stepchild".

The Tribunal also referred a series of questions to the Court of Justice of the European Union, including:

1.     For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?  

2.     If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

3.     In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

4.     In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

5.     Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence) and being issued with a residence card under Article 19 of the same Directive?

While it is likely to be some time before the Court provides guidance on the above questions, such clarification will be helpful in ascertaining to what extent applicants can derive a right of residence arising from their relationship with their children, irrespective of the fact that they are no longer minor children. Our current experience is that the Department is reluctant to take into account a relationship between a parent and an adult child, even where emotional ties and dependencies are evidenced. A parent, relying on EU Treaty Rights, will ordinarily need to advance independent grounds before the Department to be successful in retaining their right to reside.

We will keep you updated on the progress of this reference and look forward to hearing any comments you might have.

Brophy Solicitors

18.10.11

PROPOSED REFERENDUM ON CHILDRENS' RIGHTS PLANNED FOR NEW YEAR

The United Nations Convention on the Rights of the Child requires that states act in the best interests of the child. Ireland is a signatory to the Convention and ratified it since 1992. States that ratify it are bound to it by international law. In 2006, the United Nations Committee on the Rights of the Child in Geneva expressed concern that the wording of the Irish Constitution does not allow the state to intervene in cases of abuse, other than in very exceptional cases. Therefore, the Irish Government undertook to amend the Constitution to make a more explicit commitment to children’s rights.

In his recent address to other UN member states in Geneva as part of Ireland’s Universal Periodic Review, Minister Alan Shatter said that the referendum on children’s rights will be held early in the new year. The announcement was welcomed by many groups such as Barnardos, CARI, the Children’s Rights Alliance, The Dublin Rape Crisis Centre, ISPCC, One in Four and the Rape Crisis Network of Ireland. The Irish Council for Civil Liberties said that a more definitive date was needed.

The proposed wording for a referendum on children says the following:

‘In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be first and paramount consideration.’

The proposed amendment will bring Irish law in line with the current UK position, as confirmed by the recent Court of Human Rights judgement in the case of ZH (Tanzania) (concerning the removal of a non-British parent of a UK citizen child). The Court of Human Rights held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK. In the words of Lady Hale:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

The new Constitutional provision may have quiet an impact in the immigration field and the exact wording of the proposal amendment is of much interest to us.  For example, the inclusion of the word ‘upbringing’ gives scope for the argument that children have rights to be brought up in the country of their nationality. This would be a novel right under Irish law, given the current position as set down by the Supreme Court in the case of L and O case  (Lobe v. Minister for Justice, Equality and Law Reform [2003] IESC 3 (23 January 2003). In that case the Supreme Court held that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. 

The proposed wording of the new Constitutional provision gives room to argue that the deportation of an Irish citizen child could be deemed unconstitutional if it was not in the best interests of the child’s upbringing. Could it not be argued that in most cases a child would be better off to be brought up in a developed country like Ireland, than many developing countries where standard of life may be of a lesser quality? Could it be argued that the rights of the child extend not only to parents, but other immediate family members, such as siblings?

Certainly, some discussion is necessary on how a balance may be struck between achieving the protection of the rights of children and permitting the State to act within its required duty to protect the Immigration and welfare systems. We believe that the upcoming referendum is a good opportunity to assess these sometimes conflicting rights of the State and individuals. It is an opportunity to create and improve current policy in respect of the rights of children, and their position in society.  We welcome the implementation of children’s rights into the Constitution and the State’s commitment to ensuring that children are protected and a statement by the people of Ireland about the type of society in which we would like to live.

Brophy Solicitors

14.10.11

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

UNIVERSAL PERIODIC REVIEW

This October saw Ireland examined for the first time by other United Nations (UN) countries on our human rights record. The process is called Universal Periodic Review.  It is a process where the human rights record of the United Nations 192 member states are reviewed and assessed every four years. It is an important part of reminding states of their responsibility to fully respect and implement all human rights and fundamental freedoms. As noted by Ban Ki – moon, UN secretary General, the Universal Periodic Review ‘has great potential to promote and protect human rights in the darkest corners of the world.’ 

Minister Alan Shatter personally attended the United Nations Geneva Head Quarters on the 6^th October 2011 to answer questions on Ireland’s human rights record as Ireland submitted to its first ever ‘Universal Periodic Review’. In his opening address, Minister Shatter made specific references to both the positives and negatives of Ireland’s human rights record. Of particular interest to us was his specific reference to the unacceptable delays in the Naturalization process. He confirmed that he was taking steps to rectify this problem, and aimed in due course to have all applications dealt with within a six month period. He acknowledged criticism for the lack of appeal process to decisions of Naturalization applications, but confirmed that he reviewed all decisions and therefore there was no higher authority to determine appeals.  He cited the new Citizenship ceremonies as a positive step towards welcoming and celebrating newly declared citizens. 

Questions were then put to the Minister from each represented member state focusing on human rights issues of concern in Ireland today including children’s rights, access to abortion and the ABC judgment, prison violence, overcrowding and sanitation and traveller’s rights. The review marked an opportunity for people in Ireland to highlight important human rights issues which face the country, and to encourage Ireland to promise to address these issues in front of an audience of their international peers.

The Minister made some positive statements such as confirming that a Referendum on children’s rights would be held early in 2012 in order to bring Ireland into line with the UN Convention on the Rights of the Child. He acknowledged the urgent need to modernise our mental capacity legislation in order to protect those who are vulnerable in society. He also outlined a commitment to ratify the optional protocol to the Covenant on Economic, Social and Cultural Rights which would allow individuals to complain about alleged violations of these rights at an international level.

However, it has been noted that the Minister was short on detail in response to questions on other issues that are related to human rights protection in Ireland. For instance, the Minister noted the government are preparing legislation to enable it to ratify the Optional Protocol under the UN Convention against Torture. This is an important development and would require the establishment of a national body to monitor places of detention. However, the Minister failed to go into detail on the substance of that legislation or to give any timeline for its implementation. Irish Council for Civil Liberties (ICCL) Director Mark Kelly has commented that while Mr. Shatter appears to be sincere in his intentions, concrete action will be required to meet the promises made by Mr. Shatter at the review.

On the 11^th October, the UN Human Rights Council adopted its ‘Outcome Report’ on Ireland. This contained a summary of what was discussed at the hearing and a list of recommendations for Ireland to improve the human rights situation. This will be formally adopted at a hearing in March 2012, where Ireland, The United Nations Human Rights Council, and NGOs will be able to discuss the report and the obligations which Ireland are required to meet.  Once this report is formally adopted, it will form the basis on which Ireland’s human rights performance will be measured for the coming 4 years.

We believe that the Universal Periodic Review (UPR) is an essential part of improving the human rights situation in all countries and to address human rights violations whenever they occur. It has allowed for civil society to contribute to the examination of Ireland by highlighting the human rights issues of concern which are facing Ireland today and providing evidence of this to the United Nations about how they are affecting people on the ground.

Brophy Solicitors

13.10.11

EU TREATY RIGHTS: RIGHTS OF RESIDENCE IN THE EVENT OF SEPARATION

We are currently challenging a decision of the Department to revoke our client’s permission to reside in the State in circumstances where he has lived with his Union citizen wife for five years and is now separated but not divorced. As we have noted in our previous blog posts, there appears to be a lacuna in Directive 2004/38/EC and the Regulations with respect of residency rights of third country national spouses who have separated from their Union citizen husband or wife but have not yet obtained a divorce. This is one such case in which we are arguing that our client retains his right to reside despite the separation pursuant to Article 13, Directive 2004/38/EC. 

Our client is a non-EEA national who married and resided with an Union citizen between September 2005 and March 2010. During the period of their marriage, both husband and wife were working or studying. The couple separated in March 2010 and our client’s wife has now left the State. The Department then sought to revoke our client’s permission to reside in the State on the basis that his marriage to an Union citizen had broken down. We responded making submissions that our client retains his right to reside in the State pursuant to Article 13 of Directive 2004/38. 

Article 13(2) relates to the right of residence by non-EEA family members in the event of divorce, annulment of marriage, or termination of registered partnership. The relevant section states:  

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State ...

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

On behalf of our client, we are arguing that it would be contrary to our Constitution’s recognition of the special position of the family in the State, the need to protect the institution of the family, and the restrictions which the State impose on the obtaining of divorce (including the need to live apart for four years), to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC. 

In arguing that the residency protections in Directive 2004/38/EC should extend to our client who is separated, but not divorced, we are relying on Recital 15 of the Directive that provides:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.”

It appears from the recital, that the provisions of Article 13 of Directive 38/2004/EC should be purposively construed such that a third national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. Otherwise, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence which appears to be an encouragement to divorce, and is contrary to our Constitution. A further difficultly in Ireland is that under Irish law a couple must live apart for four years before a decree of divorce can be granted.

We will keep you updated on the progress of our challenge. If you have any questions or comments, please contact us!

Brophy Solicitors

12.10.11