ECHR DECISION: SERIOUS OFFENCES, FAMILY LIFE AND RELIANCE ON ARTICLE 8

A recent decision of the European Court of Human Rights in AA v United Kingdom (8000/08) [2011] ECHR 1345 (20 September 2011) determined that a young Nigerian applicant’s return to Nigeria would violate his Article 8 right to respect for his private life as a young adult. The decision provides helpful consideration on the proportionality exercise where a serious offence has been committed but appears to be less instructive on whether relationships between adult children and their parents/siblings may constitute family life for the purposes of Article 8.  

The facts in brief were as follows: a Nigerian had arrived lawfully in the UK at 13 years to join his mother and two sisters. At the age of 15, he was convicted of raping a 13 year old girl for which he was sentenced to 4 years youth detention. On completion of his sentence, the applicant achieved academically, maintained family ties with his mother and adult sisters, and did not re-offended and was found to be at low risk of re-offending. The UK Home Office sought to deport the applicant, relying on the serious criminal offence committed and the absence of any family life within the terms of Article 8. The Strasbourg Court held that the deportation of the applicant would violate his Article 8 right to respect for his private life.

The majority of the Court’s considerations were with respect of whether deportation was necessary for the “prevention of disorder or crime” as was contended by the UK government. The Court noted a number of factors that mitigated against the seriousness of the original offence. Of particular importance was the fact that since his release from detention seven years ago - and the court took the date of its own consideration as the relevant date in line with its approach in Article 3 cases - the applicant had done nothing to support the UK government's contention that his deportation was necessary for the 'prevention of disorder or crime'. The Court noted that the offence was committed whilst the applicant was a minor and the best interest of the child were not furthered by severing family ties necessary for reintegration of a child offender. The Court placed reliance on the significant period that had elapsed since the offending behaviour and the impressive achievements of the applicant during this time. Reliance was also placed on the fact that the UK Asylum and Immigration Tribunal had previously accepted that the applicant presented a low risk of re-offending. Overall, the likelihood of the applicant engaging in further criminal behaviour was held to be a key consideration where risk to public order was being relied on as the legitimate aim justifying expulsion.

With respect of the Applicant’s family life, the Court noted that the applicant had spent half his life in the UK maintaining relationship with his mother and sisters and had not had contact with his father, residing in Nigeria, since 1991. The Court’s conclusions with respect of the Applicant’s family life in the UK were brief and stated as follows:
"Finally, as regards the applicant's ties with the United Kingdom and with Nigeria, the Court observes that the applicant continues to reside with his mother and has close relationships with his two sisters and an uncle, all of whom reside in England. He has completed the majority of his high school and further education in the United Kingdom and has now commenced a career with a local authority in London. He is also a member of a church community. While he spent a significant period of his childhood in Nigeria, he has now not visited the country for eleven years. He has had no contact with his father since 1991."

Essentially, there was no clarification by the Court in this decision on whether relationships between adult children and parents/siblings can amount to family life in deportation cases. The majority of the Court’s considerations related to whether deportation served a legitimate aim of the “prevention of disorder and crime”.

Lourdes Peroni, in her recent blog post on the UK Human Rights blog provides an extremely instructive overview and discussion of the Court’s decisions on the status of relationships between adult children and parents/siblings and family life for the purposes of Article 8, with a starting point as the Court’s decision in this case of AA. Ms Peroni notes that while in Maslow v. Austria such family ties were accepted as constituting family life, where the young adult did not yet have family of their own, in the earlier decision of Slivenko v. Latvia it was held that an additional element of dependence would be needed for such relationships to constitute family life.

While the decision in AA therefore does not provide clarity on the status of relationships between adult family members for the purposes of Article 8, it does assist in clarifying what factors are to be accorded weight in the proportionality exercise where a serious criminal offence has been committed.  Finding that removal of the applicant to Nigeria would constitute a violation of Article 8 of the Convention, the Court concluded:
"The foregoing considerations are sufficient to enable the Court to conclude that the applicant's deportation from the United Kingdom would be disproportionate to the legitimate aim of the "prevention of disorder and crime" and would therefore not be necessary in a democratic society. There would accordingly be a violation of Article 8 of the Convention if the applicant were deported to Nigeria."

Brophy Solicitors

04.10.11

BROPHY SOLICITORS CASE ANALYSIS - EZENWAKA

Judge Hogan’s interesting judgement in Ezenwaka!

Ezenwaka & Anor – v- MJELR [2011] IEHC 328

BACKGROUND:

This judgment makes for good reading. It concerns a Nigerian mother Ms Ezenwaka, and her two children who in error, were granted a visa to enter the State and join Mr. Ezenwaka (husband to Ms. Ezenwaka and father to her children).  He was resident in Ireland under the IBC Scheme, a scheme which did not permit such family members to join a beneficiary under the scheme in the State.

Mr. Ezenwaka is the father of an Irish child, Samuel but was not married to the mother of his child.  He had on one occasion returned to Nigeria to see his wife and children and felt he needed to be re-united with them.  A ‘D Type’ Visa was granted permitting family reunification by the Irish embassy in Abuja in 2008.   On the basis of this, the Ezenwakas significantly altered their position in Nigeria.  Ms. Ezenwaka sold her car, moved out of the family home, gave up her job and purchased tickets for the flight in anticipation of a permanent move to Ireland. 

The family was refused entry to the State by immigration officials at Dublin Airport who formed the opinion that the visas had been issued in error and this was confirmed by contact with the Minister’s office who in turn explained that the IBC 05 policy did not cover this situation.  The officials discovered that the Irish citizen child had been born to another woman who was not Mr. Ezenwaka’s wife.

Accordingly Ms. Ezenwaka and her two children returned to Nigeria were they remained ever since. 

ANALYSIS:

Judge Hogan commented that ‘there is no doubt but that this entire episode was deeply disappointing- perhaps even traumatic – for the Ezenwakas.  Certainly, it is not difficult to imagine the acute anguish and hardship which the family must have endured by agreeing to leave Nigeria permanently and o make a long journey to Ireland via Turkey, only to find that they are the victims of the unfortunate bureaucratic misunderstanding.’   The judge maintained that it was clear that the Ezenwakas had a legitimate expectation that they would be permitted to land ‘subject to other conditions..’

The immigration notice that issued to the family was issued pursuant to Section 4 (3) (j) of the Immigration Act, 2004 on the ground that their admission into the State would be contrary to public policy.  The judge took issue with the decision to refuse based on ‘public policy’ as specified under the act i.e. it connotes a situation where that personal conduct of the immigrant poses a real and immediate threat to the fundamental policy interests of the State.   In the present case, the judge commented that while the State was fully entitled as a matter of policy to restrict the operation of the IBC Scheme, and to take the view that the admission of this family did not come within the scope of that policy, ‘the concept of public policy in the context in which the phrase appears in s.4(3)(j) is a very different one. Neither Ms. Ezenwaka nor her children pose a threat to Irish public policy in that particular sense of the term.’  

The judge also went on to say that the operation of the IBC Scheme could not exclude the possibility of exceptional and special cases.  He took the view that the Ezenwakas were given no effective opportunity to address their case by reason of their special and unique circumstances. 

In conclusion, Judge Hogan held that the decision of the immigration officials to refuse entry to the State should be quashed as it was based on an incorrect interpretation of the term ‘public policy’ in s 4 (3)(j).   He held the decision was invalid since it was premised on the application of a fixed policy which did not take account of the unique position of the Ezenwakas.   The Minister was directed to re-consider any fresh application made by the Ezenwakas for admission to the State.  He will be required to consider ‘whether any exceptions to the existing policy should be made for the Ezenwakas in light of the hardships they have suffered and the implications (if any) the making of any exceptions might have for the fair and consistent application of the scheme for other cases.’

OUR THOUGHTS:

It is somewhat refreshing to read Judge Hogan’s findings in Ezenwaka.  The case demonstrates the strict application of Ministerial Schemes such as the IBC 05 scheme which removes any opportunity for consideration and determination of special or unique cases.  The judge went above and beyond determining the extent to which the State would be held liable for mistakes of its officials and went on to scrutinise the personal situation of the applicants, the incorrect application of the phrase ‘public policy’ as well as the problems that attach to rigid inflexible policies.    While any fresh application ultimately rests in the hands of the Minister, at least the Ezenwakas have a second chance of admission to the State even though this chance arises three years after they were initially refused entry. 

For more the full judgement click HERE

AG’S OPINION THAT RETURNS TO GREECE RISK BREACHING FUNDAMENTAL RIGHTS

Advocate General Verina Trstenjak last week issued an opinion in a Preliminary Reference Case C-493/10 from the Irish courts regarding the transfer of asylum seekers from Ireland to Greece. The case mirrors the issues determined by the European Court of Human Rights in MSS v Belgium and Greece, which we discussed in our previous posting. The cases essentially concern whether return of an asylum applicant to Greece from a transferring Member State under the Dublin Two Regulations  risks breaching the applicant’s fundamental rights and whether such a transfer would be contrary to EU law. 

The recent reference from Ireland (arising out of M. E. and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform) to the Court of Justice concerns five asylum applicants from Afghanistan, Iran and Algeria who had entered and travelled through Greece as illegal entrants but who had not claimed asylum there. The principal issue to be determined by the Court and that is considered by Advocate General Trstenjak in her opinion is whether the transfer of these asylum seekers to Greece may constitute a risk of a serious breach of their fundamental rights.

You may recall, in the case, M.S.S. v Belgium and Greece, an Afghan asylum seeker entered the EU through Greece en route to Belgium where he claimed asylum. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights.

In her opinion, the Advocate General Trstenjak considers under what conditions it might be appropriate, or even obligatory, under EU law, for Ireland and the United Kingdom (who also made a reference and the cases were joined), notwithstanding the primary responsibility of Greece for the applications, themselves to undertake the examination of those asylum applications. 

The Advocate General opines that the transferring Member State when determining whether to examine an asylum application for which it is not responsible, is required to have regard for the provisions of the Charter of Fundamental Rights.

The Advocate General notes that the Greek asylum system is considerably overburdened and can no longer guarantee that asylum applications will be dealt with in compliance with EU law. She therefore argues that it cannot be ruled out that asylum seekers who are transferred to Greece may, following their transfer, be treated in a manner which is incompatible with the provisions of the Charter of Fundamental Rights.^. 

The AG's opinion concludes therefore that the transferring Member States, the United Kingdom and Ireland, are obliged to assume responsibility under Regulation No 343/2003 and must themselves examine the asylum application. 

It may also be of interest to note that the AIRE Centre and Amnesty International are third party interveners in this case and have issued a press release summarising the key findings in the opinion of Advocate General Trstenjak. 

Brophy Solicitors

26.09.11

ZAMBRANO : THE UK AND IRISH POSITION COMPARED

The following statement was recently posted on the UK Border Agency Website;

“The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;

evidence of the relationship between the applicant and the British citizen; and

adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.”

The UK position is now clear in a number of respects;

In order for rights to arise pursuant to the Zambrano case (or Treaty of the Functioning of the European Union), the applicant must be the parent of a British citizen child, as opposed to the parent of a child of a different Member State citizenship.  The reasoning is that in order for a right to reside for the third country national parent to arise, there must be a risk that the Union Citizen child would be forced to leave the territory of the Member States if that right was not granted, such as the Columbian parents of the Belgium children in Zambrano. The argument that the rights arising from Zambrano will only have effect if the child is to be removed from the territory of the Member States has also been raised in some of our cases in the High Court, and we expect this point will be fully argued out in upcoming hearings in the next court term.

The Irish position is also that the Zambrano judgement applies only where the child is of Irish nationality within Ireland.  However, contradictory policy statements have been made by the Minister in respect of which persons come within the remit of the Zambrano case. Initially, it was indicated that parents of Irish citizen children who are outside the State do come within the ambit of Zambrano, and last week our office received a positive determination on one such case. However, contradictorily, the current policy statement is stated on the INIS website as follows;

“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

The idea that the rights arising from Zambrano do not apply to parents outside the State has created a most unusual situation – those parents who follow correct procedure by applying for a visa to enter the State with or to join their Irish citizen child will be refused, when those who enter the State without a visa can immediately submit an application for permission to reside and work and  expect to be approved within a number of months. This categorization of parents of Irish children between those resident within or outside of the State is simply nonsensical .

In the above statement, the Border Agency’s use of the word “sole carer” would seem to exclude from the ambit of Zambrano a parent where that child’s other parent has lawful residence and can continue to reside in the Member States with the child. Such an interpretation appears to place greater weight of a child’s right of free movement as compared to a child’s right to the company of both parents, and is difficult to reconcile with the “Best Interests of the Child Principle”, confirmed by the European Court of Human Rights as the primary factor in cases involving children.

In describing the EEA national from whom the Treaty rights derive, the UK Border Agency uses the term “dependant British citizen”, while the Minster of Justice in public statements has referred to “dependant minor children”. The Irish interpretation that the Union Citizen child must be a minor child excludes those children who are between the age of 18 and 23 in full time education. In one such case we act on, the Minister has explicitly confirmed that Zamrbano does not apply to a 20 year old Irish citizen who is in full time education and fully dependant on her Pakistani father. A deportation order has been issued against her father, and if effected, she will be required to return to Pakistan.

The use of the phrase “carer ” of a British citizen if also of note. In a recent correspondence received from the Department of Justice, our client who is the father of an Union Citizen child  has been requested to provide evidence that he is the “primary carer” of that child. The Department have taken a position that our client is not a primary carer because he is in full time employment and the child is predominantly looked after by the mother while the father works. The fact the family is solely financially supported by the child’s father appears not to considered as significant as the role of the mother who is caring for the child.

We note that the Border Agency has confirmed that the UK will be making amendments to  the Immigration (European Economic Area) Regulations 2006  to provide a right to reside for persons falling within the ambit of the Zambrano Judgment. Given the interpretations as highlight above, we hope they wait for further clarification for the Court of Justice before implementing these amendments!

Pending the proposed statutory amendments, the UK has undertaken to provide applicants pursuant to Zambrano temporary rights to reside and work pending determination of their applications.  This is a very welcome and necessary development. The Department of Justice has not taken this step. Here in Ireland, applicants pursuant to Zambrano, (or pursuant to Chen for that matter)  are not issued with temporary permission to remain, or permission to work, while their applications are being processed. This position is inconsistent with the process applied to those applicants pursuant to Directive 2004/38/EC, who are issued with six month temporary permission to remain and work on submitting a valid application. We see no reason why applicants pursuant to Chen and Zambrano (which are actually pursuant to the Treaty of the Functioning of the European Union) should be treated very much less favourably than applicants pursuant to Directive 2004/38/EC.  The Department of Justice is in effect operating a two tier system of rights, depending on whether the family member of a Union Citizen does or does not fall within the terms of the Directive. We think this is illogical, but also discriminatory.

We have been informed that the Minster has set up a special unit within the Repatriation Section to process applications pursuant. We can only presume that internal guidelines have been prepared to clarify the parameters of that case and the system which will be applied to processing the applications. The current processing system is unclear. For example, it has been indicated to us in Department of Justice correspondences that Zambrano applications are being considered in chronological order. However, in reality this appears not to be the case given the very inconsistent time frames in which our clients are receiving determinations.

We call on the Minister to follow the UK example and provide a clear public policy statement setting out the ambit of the Zambrano case, and confirming the details of a fair and transparent processing system for  these applications. In particular, we request that all Zambrano/Chen applicants be provided with temporary permission to remain pending determination of the Application. We also request that the Minster revert to his initial policy of including all parents of Irish citizen children within the remit of Zambrano.

23.9.11

Brophy Solicitors

Lebanon National Day 2011

http://www.facebook.com/l.php?u=http%3A%2F%2Firishlebanese.com%2F&h=0AQDs9s4jAQBWJrJvAnwJ4zBlEFXVAlO6sV6bE4D6oG0Ilw

The Irish Lebanese Cultural Foundation are having a Cultural day, see below...

Please pass this to all your family and friends to join us on a cultural day with diverse interests and focusing on integration.

The opportunity celebrates Lebanon National Day and 10 years of the establishment of the Irish Lebanese Cultural Foundation.

It may also be an opportunity to spend a weekend in Kilkenny visiting the marble City , its medieval Castle, Cathedrals and dwellings.

Looking forward to meeting you all.

Guy Jones

Irish Lebanese Cultural Foundation

FAMILY REUNIFICATION

FAMILY REUNIFICATION - A HAPPY ENDING FOR ONE CLIENT

We  received a number of positive decisions in pending applications for Family Reunification last week. One case is particularly a cause for celebration in our office, because it is a case that has until now caused us much concern.

Our young client had come to Ireland as an unaccompanied minor of seventeen years of age in 2005. Prior to his travels to this State, he had become separated from his family following a rebel attack on his village during which his parents had been killed. He was granted refugee status within less than three months. When he regained contact with his siblings, he submitted an application for family reunification in September 2006. He was of eighteen years of age at the time of the application was submitted.

In September 2007, it was indicated to our client that the family reunification process application would take a further 24 months to process. He received no further correspondences until notified in January 2009 that the application had been refused on the basis that sufficient documentation had not been submitted in support of the application. The refusal letter indicated that there was no appeal avenue open to our client.

Through advices from the Vincentian Refugee Centre, our client chose to seek legal advice from this firm in recent months. He instructed us that he wished to re open the Family Reunification application for his two remaining siblings.

As a first step, we applied for a copy of his file pursuant to the Freedom of Information legislation. When we became aware of the details of our clients first application, we realised that the breaches of fair procedures were of an extraordinary nature. For example, all documentation requested by the Department had been submitted by our client. The full processing time of the application was two years and four months, and it appeared that there was no activity what so ever on the file for a period of one year and four months, between September 2007 and January 2009 when the application was refused.

We believe that our client’s status as a young and unaccompanied applicant for family reunification triggered an onus on the Minister to make every effort to assist him in the application process and determine the application as expeditiously as possible.  We have no doubt that the Minister of Justice failed in his obligations to our client, the consequences of which have been immense for him. In particular, the unexplainable and lengthy delays in the processing of the application, coupled with an ungrounded and unfair negative decision, are cause for great concern. The fact that our client had submitted  the family reunification application  as a separated and unaccompanied young person of 18 years old make these failures in fair procedures all the more concerning.

We were very clear in our approach with the Department. We demanded the case be immediately reopened, fully considered and a new determination issued as soon as all relevant documentation was submitted. The Department agreed to our requests, and last week, approved the application for family reunification in respect of our clients siblings.  He is now in the process of applying for visas for them to join him in the State. He is absolutly delighted, and we wish him and his siblings the best of luck in their new future together in Ireland.

Brophy Solicitors

20.9.11

FAMILY UNITY AND ABUSE OF THE IMMIGRATION SYSTEM

UK POLICY TARGETING ABUSES IN FAMILY MIGRATION 

On our blog post of yesterday, we commented on the legal lacuna in domestic Irish law causing marriages of convenience to be lawful in the State. We called on the government to take immediate action to amend this situation and actively target the abuses in the EU Treaty Rights process.

Yesterday, the UK Minister for Integration, Damien Green, also addressed this topic in a speech to the Centre for Policy. He referred to the UK governments on going consultation process in respect of reforming family migration to the UK, which had been launched in July 2011. He indicated that this consultation group are working towards tackling abuses in the “family migration route”. The Minister referred to the following proposals that are being considered;

• define more clearly what constitutes a genuine marriage for the purposes of the immigration rules to help identify sham and forced marriages;
• introduce a minimum income threshold for those sponsoring family migrants to ensure they are supported at a level that helps integration;
• extend the probationary period before spouses and partners can apply for settlement in the UK from 2 years to 5 years to test the genuineness of relationships and to encourage integration into British life before settlement is granted; and
• require spouses, partners and adult dependants aged under 65 applying for settlement to be able to demonstrate that they can understand everyday English.

It is frustrating, but not surprising, to see the repercussions arising from a minority abuse of the immigration system in the UK, which then leads to a more difficult and restirctive application process for the genuine applicants. 

By way of comparison, it is very difficult to understand how the Irish government can allow the current position in respect of the non criminalizing of the “marriage of convenience” to stand. By not addressing the problem by way of criminal legislation, the fraudulent industry of surrounding this area can only prosper, and the Gardai’s hands are tied. Both legislative amendments and active policy making towards targeting marriages of convenience is essential in Ireland. However, restricting family unity rights for genuine family members is clearly not. 

16.9.11

Bropy Solicitors