NEW FEES FOR CITIZENSHIP APPLICATIONS

The Department of Justice and Equality recently introduced an application fee of €175 for all Naturalisation applications made after the 10^th November 2011. This fee is non-refundable and will apply even if you have lodged an ineligible application, for example where you do not have the required reckonable residency. Therefore it is important that all applicants ensure that they are entitled to apply for Naturalisation before they submit the application!

Brophy Solicitors
21.11.11

The narrow application of Zambrano: Towards an inclusive citizenship?

We recently attended an excellent seminar hosted by the Irish Centre for European Law  on the hot topic of Zambrano and EU citizenship. The seminar was entitled ‘Union Citizenship in Practice’ and had eminent speakers, including Advocate General Eleanor Sharpston of the Court of Justice of the European Union. 

There were several interesting presentations that covered highly relevant areas such as the rights of third country family members of Union citizens, reverse discrimination and the approach of the Irish courts to the decision in Zambrano. The Honourable Mr Justice Gerard Hogan chaired the session. 

We were yet again struck by the narrow application of Zambrano by both the Department of Justice and Equality and the Irish courts which was highlighted by Michael Lynn, BL in his paper ‘Citizenship and Residence Rights in Ireland’. 

The narrowness of the interpretation was made more striking this week by the inauguration of our ninth President, Michael D Higgins, who has spoken passionately and eloquently about the concept of an inclusive citizenship. Michael D Higgins aspires to a citizenship that allows each citizen to participate in society and to develop their personal and social selves in communal solidarity. 

Alan Shatter does not appear to agree. 

The model of citizenship being applied by the Department of Justice and Equality in whether to grant residence to the foreign parents of Irish citizen children, appears to be far from such an inclusive citizenship. An Irish citizen child now residing outside the State will struggle to fit into the criteria being applied by the Department. They are expected to reside outside the State until they reach 18, whereupon they may return to the State and enjoy their citizenship fully. Their inclusive citizenship will, it seems, have to wait until they are eighteen. 

In our view, it is fundamentally unfair and inconsistent with our Constitution and EU Treaty provisions that Irish citizen children enjoy different rights and entitlements, depending on their parentage and residence. That a child can simply reassert their Irish citizenship when they turn 18 and become independent from their parents flies in the face of any concept of inclusive citizenship. As Justice Fennelly stated in his dissenting opinion in the Supreme Court decision of A.O. & D.L.: “The notion of postponement is offensive to logic ... a child, who is de facto deported from the State before his education commences, cannot conceivably be “part of the Irish nation” or “share its cultural identity and heritage.”

Brophy Solicitors

21.11.11

PILA/PILS PROJECT JOINT ANNUAL CONFERENCE 2011

We were very pleased to attend the PILA/PILS conference on Friday 11^th November held in the wonderful setting of Croke Park. The conference, entitled ‘Political Commitment, Practical Protection: Using the ECHR North and South’ featured speakers who provided insight into the implementation of the European Convention of Human Rights both in the Republic of Ireland, Northern Ireland and Great Britain. 

FLAC solicitor Michael Farrell provided an interesting analysis of his involvement in the transgender case of Lydia Foy and how Ireland was found to be in breach of the terms of the Convention.  Gerry Hyland, human rights solicitor practicing in Belfast provided a practical guide on how the ECHR has been relied on and developed through a broad spectrum of litigation in Northern Ireland.  Several workshops provided key information on how the articles of the Convention have been and can be relied on in various areas of public interest law including: Child Law, Mental Health, Travellers and Housing.  It was extremely educational and useful to hear speakers representing both North and South on key problem areas arising within public interest law affecting residents throughout Ireland. 

The audience were however captivated by one speaker in particular as Shami Chakrabarti, Director of Liberty in the UK spoke eloquently about the importance of upholding human rights standards across borders.  Changes to the human rights scheme in the UK would be a negative step according to Ms. Chakrabarti who spoke about the coalition government’s proposal to make human rights and fundamental freedoms more contingent on citizenship and good behaviour: "Crude and ignorant attacks on the Human Rights Act in the UK should be troubling to friends of freedom further afield. How bizarre to talk up universal human rights abroad whilst seeking to dilute and diminish them at home. Fundamental rights and freedoms cannot be contingent on any particular patriot status," commented Ms Chakrabarti.

Speakers emphasised the growing need to ensure equivalent protection of fundamental freedoms and human rights both North and South given the current political climate and given the guarantees provided by the Good Friday Agreement. 

We would like to thank PILA/PILS for their excellent organisation and for the effort they put into organising this year’s conferences which was enjoyed by all.

Brophy Solicitors

16.11.11

ZAMBRANO: STAMP 4 AND EDUCATIONAL SUPPORT

We contacted the Department of Justice and Equality recently in respect of a number of queries raised regarding entitlements to education support for non nationals resident on Stamp 4 Status.

Many persons residing in Ireland are eligible for an ‘Immigration Stamp 4’ which, according to the Minister’s Office, entitles the holder to work without need for an employment permit but does not confer an entitlement to any particular public service or funding as such matters are determined by the relevant government departments or State agencies.   One of our clients has been granted a Stamp 4 for one year based on discretionary Humanitarian Leave to Remain.  She is also the mother of an Irish citizen child and wants to apply for a Stamp 4 pursuant to Zambrano as the policy operating from the Department generally provides for a Stamp 4 for three years. She intends to enrol in a Third Level Education Scheme under which she will be eligible for free fees based on her current status in the State.  However, the eligible categories of stamp holders entitled to avail of such a scheme do not yet specifically cover ‘Zambrano’ type Stamp 4 holders. 

We contacted the State in an attempt to ascertain information on whether or not our client would be entitled to continue to be eligible to avail of free fees under Stamp 4 (Zambrano).  The Minister advised that the Department has no function in matters relating to educational supports and that this issue will be a matter for the Department of Education and Skills.

We have however been informed that the Department of Justice and Equality has set up a dedicated email enquiry database under which education grant awarding bodies can submit queries in relation to the immigration status of their applicants.  Such information is not entirely useful to our client but it would be worth contacting the Department of Education and Skills if you are concerned that your stamp might not entitle you to access educational support. 

We believe that persons who have been granted permission to remain in Ireland to care and support their Irish citizen children, should not be treated any less favourably in terms of accessing services or public funding in respect of education, than those who have been granted permission to remain on humanitarian grounds. There is potential for great confusion as to the type of residency permission that is conferred on a person who is entitled to reside in the State pursuant to Zambrano, a decision that issued from the ECJ relying wholly on the Treaty on the Functioning of the European Union. 

Brophy Solicitors

18.11.11

Lessons from the Heated Debate on Immigration in the UK

The UK Home Secretary, Theresa May is again under the spotlight on immigration front. Following soon after ‘catgate’, she has spent the week fending off calls for her resignation.  

The Home Secretary is under fire for an instruction to her officials to relax checks on EU biometric passport holders at UK ports and airports during the busy summer period. According to the Home Secretary, officials in the UK Border Agency subsequently went beyond her instruction, relaxing checks on EU non-biometric passports. It is unclear at this stage who authorised what. There have been heated exchanges between the UK Border Agency and the Home Secretary with the head of the UK Border Agency, Brodie Clarke resigning and claiming constructive dismissal.  

It is striking that such a trivial matter can create such a media storm. Observed from afar, the political debate on immigration in the UK time and time again shows itself as reactionary, negative and misinformed.  

This particular debate appears to overlook some basic facts about illegal immigration. That is, the vast majority of migrants to the UK enter legally with a valid work, student or visitor visa – and many then overstay their permitted period and become illegal migrants. Illegal entry and forged passports are not the main problems for the UK Border Agency. Also, as Alan Travis in the Guardian points out, Theresa May’s rationale behind the relaxed checks seems sound: targeted checks are more effective at identifying illegal migrants whereas blanket checks mean more delays and are resource intensive.  

The UK example should be instructive to our own media and public debate. The media has an important role in informing people’s opinions on asylum seekers, refugees and migrants generally and can feed into fuelling racial prejudices and ‘flood gate’ fears. It is worth bearing in mind that the evidence on which media reports are based is often shaky. A recent report by the Migration Observatory at the University of Oxford identified ten problems with the evidence informing such a debate on immigration. The report shows how difficult it is to accurately assess for example the impact migration has on public services, or even at establishing basic figures for how many illegal immigrants there are in the country.  

We anticipate more difficult times ahead for Theresa May holding what seems to be the poisoned chalice of Cabinet postings. Meanwhile, we hope that our own political and media debate retains a sense of proportion avoids the Daily Mail sensationalism of the UK.  

Brophy Solicitors  

16.11.11  

Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11

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