INTEGRATION CONSIDERATIONS IN RESPECT OF RESIDENCY APPLICATIONS

The case of an Angolan teenager named Mauro Manuel has been receiving alot of media attention this week becuase the young boy has lost his fight to stay in the Netherland despite a plea by him to the Dutch parliament and countless support from the general public for his case.

Mauro has been living in the Dutch province of Limburg with a foster family since he arrived in the Netherlands as an unaccompanied asylum seeker at the age of ten in 2003. During this time, Mauro had  become very settled in the Netherlands.  He currently lives with foster parents who have recently had a son who Mauro counts as his little brother. Mauro even speaks fluent Dutch and with the added touch of the unmistakeable Limburg drawl. He is also studying a vocational course at college. It would seem by any reasonable standard that Mauro is extremely integrated in the local community and in Dutch society. 

The decision against Mauro was made by Dutch MPs who voted down two motions on Tuesday last which would have allowed him to stay in the country permanently. They are expected to vote next week on a compromise solution which would allow him to stay to hear whether or not an application for a temporary four-year visa as a student would be successful.

On the day when the decision was been made by parliament, Mauro had the support of 700 supporters and celebrities to submit a petition which was signed by more that 55,000 people. All of these people are in agreement that Mauro, an integrated member of the community should be given the right to remain in the place that he regards his home place. Mauro also enjoys support from groups such as the United Nations children’s agency, Unicef, who have stated that if Mauro was to be deported now, at a time when he is fully established and integrated in Dutch society, it would be in contravention of the UN Convention on Children’s Rights and would have serious repercussions for his development. 

The case of Mauro raises questions regarding the proper weight a State should give to the integration of an applicant within the community in respect of their application to remain in that State. If Mauro is deemed not sufficiently integrated into the life and Society of Netherlands to permit him to stay, then what is actually required for someone to be deemed to be permitted to remain in the community?  

The Dutch Immigration and Asylum Minister Gerd Leers ruled that Mauro had no right to stay in the Netherlands due to the fact that there were many others in Mauro’s situation and that therefore an exception could not be made.  In Ireland, the policies applied by the State to justify refusal of residence/visa applications, or to ground deportations include the obligation to protect the integrity of our immigration system, the State welfare system, control of borders, etc. Such policies are of course important. But where does the correct balance lie in circumstances such as Mauro’s case where an individual is fully established and integrated in the State?

National policies which attempt to control and manage immigration are legitimate and necessary, but must be applied relative to the individual facts of the each case. Blanket policies applied systematically can lead to unreasonable, unfair and perhaps unlawful decisions.

Supreme Court Judgment on the “Ejerwena” case, 28th October 2011

On the 28^th October last, the Supreme Court delivered judgment in a case concerning a challenge against the detention of a non-national for Immigration offences.

The appeal to the Supreme Court by Gerard Ejerwena involved an enquiry into his detention by the State on 1^st August 2011 in Dundalk Gardai station. It was argued before the High Court that his detention was unlawful under article 40.4.2 of the Constitution.  Therefore,  he was entitled to commence an enquiry, and the Court was required to hold an immediate hearing on a specific date and time known to investigate as to the lawfulness or not of his detention, and if not, to grant a “habeas corpus” order releasing him from unlawful detention. 

The facts of the case were as follows; the appellant was travelling on a bus which was headed for the Northern border which was stooped by he Gardai who then demanded that Mr Ejerwena produce proof of identification which he could not do. At the station he was asked to fill out a landing form, on which he stated that he was from Sierre Leone, however the Gardai did not accept this and ordered him to fill out another. On the second card he claimed to be Nigerian and due to suspicion of his identity, members of the Gardai deposed that the appellant was refused to leave land for not having a valid passport, a valid visa and also because he would try and travel to Northern Ireland where he would not have permission. Subsequently Mr Ejerwena was detained at Cloverhill Prison.

Mr Ejerwena appealed to the Supreme Court to the effect that the detention order in question was in fact defective. Firstly it was argued that the three main reasons that the Gardai stated for holding the appellant should have appeared on the face of the warrant. He also submitted that the document also did not show that the immigration officer had suspected with reasonable cause that the appellant had unlawfully been in the State for a continuous period less than three months. Furthermore various case law was mentioned by counsel for the appellant to the effect that in this case the Gardai had failed to demonstrate sufficient efforts to show (on the face of the document) the exact reasons for the refusal to leave land, so that in the event of an inevitable “habeas corpus” motion the court could efficiently and fairly examine the validity of the detention.

For these reasons the appellant was successful and Mr Ejerwena was released on 26^th August 2011. 

3^rd November 2011

Brophy Solicitors

GUARDIANSHIP

We have recently received a number of queries in relation to legal guardianship from persons who wish to apply to the Minister for permission to reside on the basis of their parental role with an Irish citizen child.  Some of the queries relate to unmarried fathers who are no longer in a relationship with the mother of their child, and are in disagreement regarding custody and access to their child. Other cases involve persons who are not the natural parent of the child, but are married to the child’s parent, and are in every other way like a parent to the child. An understanding of the law of guardianship is required to establish what residency rights such parents acquire through their relationship to the Irish citizen child. The following is a short summary of this subject;

Guardianship is a collection of rights and duties which a parent has in respect of their child. The guardian has a duty to maintain and properly care for their child and to make decisions in areas such as the child’s religion, school, adoption, medical treatment. Only natural parents can be guardians of their children if the parents continue to be alive.

When the parents of the child are not married to one another, only the mother of the child is automatically a guardian. The unmarried father is not automatically a legal guardian of his child, and must apply to the local district court to be appointed a joint guardian of his child. An unmarried father can become a guardian by agreement with the mother where the father and mother can fill up and sign a statutory declaration for joint guardianship (S.I No 5 of 1998). The mother’s views are not determinative by the court in making the decision. The fact that the mother may not consent does not mean that the court will refuse the order for guardianship sought by the father. Any decision by the court will be made in the best interests of the child.

If the parents of the child marry each other following the birth of their child, then the father automatically becomes a joint guardian with the mother as long as the child has not be adopted and the mother was not married 10 months before the birth of the child.

If the mother marries a man who is not the father of her child, there is no legal relationship between her husband and her child. If the birth father is a joint guardian he remains a joint guardian of his child. If the mother and her husband wish to adopt the child and the father is a joint guardian, his consent to the adoption is required. If a father is not a joint guardian he has a right to be consulted about the adoption. If the child is adopted the father loses all legal rights in relation to the child.

When a woman has a child outside marriage and goes on to marry a man who is not the father of her child there may be a desire to establish a legal link between her husband and child. This may only be done in Ireland by having the child adopted by the married couple. This means that the biological mother becomes the adoptive mother of her own child and the step father becomes the adoptive father with all he rights and responsibilities to the child as if the child had been born into the marriage. It means that the biological father will have no further rights or responsibilities to the child and will not have the possibility of getting rights in the future.

The adoption creates a legal family unit with constitutional protection as if the child had been born into that family unit. It gives full parental rights and responsibilities to the adoptive father and this is especially important in the event of the death of the mother.

Parents who are guardians but especially mothers who are sole guardians, should make a will appointing a guardian to act on their behalf in the event if their death before the child is 18. This is called a testamentary guardianship. The surviving guardian if there is one then acts jointly with the testamentary guardian. If a parent dies without appointing a guardian in a will, it is possible for someone with an interest in the child to apply to the court to be appointed a guardian of the child.

Changes to Reference Numbering under a new INIS Information Technology System

A new Information Technology system is being introduced in the Irish Naturalisation and Immigration Service (INIS) including the Office of the Refugee Applications Commissioner (ORAC), The Appeals Tribunal (RAT0 and the Reception and Integration Agency (RIA).

The new system will allow INIS to be more efficient in associating queries with individual applications and in directing queries to the relevant processing areas. This will simplify the process of checking the status of cases and lead to improvements in the way that INIS handles such queries. It will enable the most up to date information to be available to case workers and decision makers in a more structured way which will improve efficiency and effectiveness. It will involve the replacement of the existing file numbering system with a new single INIS approach to case numbering. The new numbers will be issued to both existing and new applicants.

The new system includes two types of identity or reference number. These are a person identity number and a separate application reference number.  The person identity number will be in the format of a number followed by a year –the year based on the first application lodged to INIS. The application reference number will include a number, information regarding each application type, and the year the application was made.

Existing applicants and their cases will be assigned both a new person identity number and a new application reference number. Applicants or their representatives should quote the new numbers in any correspondence with INIS and associated agencies.

Letters from INIS will continue to include existing file reference numbers in addition to the new reference numbers in order to avoid confusion and to allow for a smooth transition to the new system. The existing file reference numbers will be included as a cross reference for older cases, these will gradually cease to be used over a period of time.

New applicants will be allocated a person identity number and/or an application reference number. They will not be allocated an old number.

The new reference number will not to visa applications where the existing reference numbering system for visa applications will not be changed.

Brophy Solicitors

27.10.11

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.

Periodic Report Outcome 19.10.11

Ireland’s Universal Periodic Review took place in Geneva recently where Minister for Justice, Equality and Defence, Mr. Alan Shatter defended Ireland’s human rights record. Delegations of other United Nations countries put questions to the minister and made recommendations on how Ireland could improve shortcomings in the human rights area.

Of particular interest to us, is that the government have expressed their commitment to reducing the time taken to process applications for citizenship to an average of six months. It was also commented that the implementation of citizenship ceremonies demonstrated a positive attribute to welcoming new citizens into Ireland.

The United Nations outcome report on Ireland was adopted on Monday 10^th of October by the government and included 126 recommendations. Some of the noteworthy recommendations include that all asylum seekers in Ireland should be able to effectively accede to the process of determination of their refugee condition and that decisions on the necessity for international protection be reviewed and be subject to independent judicial supervision.

It was also suggested that practical and legal measures are adopted  to curb racial discrimination and discrimination against migrants and to look at the appeal by UNESCO (United Nations Educational, Scientific and Cultural Organisation) to ratify the 1960 Convention to counter discrimination in the area of education.

It was also interesting to note the suggestion to extend the remit of the Ombudsman to children in prison and asylum seeking children.

It is hoped that these recommendations will be adopted and allow Ireland to improve the current shortcomings in the area.



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.