UPDATE ON ASYLUM SEEKERS RIGHT TO WORK IN IRELAND

Last May, the Supreme Court found the law preventing those in direct provision from working unconstitutional. We are now awaiting the Ministers to approve changes to the law which will permit some individuals subject to direct provision to work. The Irish Government is expected to adopt an EU directive to fulfill their obligations as required by the Supreme Court.
These changes will enable persons who have been within direct provision for more than nine months without determination of status to work. It is expected that persons subject to direct provision may be restricted to certain types of employment. Permission to work will be granted by the Department of Justice through six month permits that may be renewed. Persons within direct provision granted permission to work may also become self-employed or train for future employment.
This legal reform is an important step in recognising the human rights of persons in the direct provision system, and may vastly improve the quality of life of persons subject to direct provision. As noted by Deputy Flanagan persons under direct provision “who will soon have access to the labour market will also see their capacity for economic independence enhanced.” The anticipated approval by the ministers of this legal reform is expected this week.

Berkeley Solicitors Team

THE RIGHT OF NON-NATIONAL SPOUSES OF IRISH CITIZENS TO RESIDE IN IRELAND: GORRY V MINISTER FOR JUSTICE AND EQUALITY

As important judgement of the Court of Appeal was delivered on the 27th October 2017, which may have a far reaching effect on the rights of Irish citizens to have their Non EEA spouse’s reside in the State with them.

The Court of Appeal has considered the right of an Irish citizen to have their non-national spouse reside with them in Ireland in the case of Gorry v Minister for Justice and Equality [2017]. The Court concluded that an Irish citizen does not have an absolute right to have their spouse reside with them, and acknowledged “the right to control aliens, their entry into the State, their departure, and their activities within the State, is part of the inherent power of the State as a sovereign State.” However the Court emphasised the duty of the Minister, on behalf of the State, to thoroughly consider the rights of the couple as a family within the meaning of the Irish Constitution and the rights of the individual as a citizen and to balance such rights against the interests of the State to determine whether an individual may reside in Ireland with their Irish spouse.
The appellants were a lawfully married couple. Mrs. Gorry’s application for asylum was refused and she was then subject to a deportation order. She did not leave Ireland and subsequently married Mr. Gorry. Following the marriage, she applied for a revocation of her deportation order on the basis of her husband’s health as he had suffered a heart attack three days after his return to Ireland following his marriage in Nigeria. This application was refused. The Court of Appeal found that the approach applied by the Minister in considering the application of the appellants was inappropriate.
The Court described the approach the Minister ought to take while determining whether a non-national spouse may reside in Ireland. Firstly, the Minister should establish the relevant constitutional rights of a lawfully married couple, the Court emphasised that these are “not dependent on other factual issues such as the circumstances or length of the marriage or immigration record of the non-national, once married the couple are a family within the meaning of article 41 and are entitled to all the rights identified.” Then if required the Minister may consider any responsibilities within the European Convention on Human Rights Act 2003. The second aspect of the test is that the Minister may consider the interests of the State, such as the common good and control of immigration. During this aspect of the test the State may consider factors such as duration of marriage, “to balance in a fair and just manner the rights of the applicants and those of the State, and reach a reasonable and proportionate decision.” The Court suggested that factors such as criminality or overburdening of the social welfare system may result in the State placing conditions on residence permits of non-nationals.
The Court stipulated that as a lawfully married couple the appellants have the constitutional right to have their application determined by the Minister with regards to (i) the constitutional right of protection of the family as per article 41.1.2, (ii) that the lawfully married couple are a family within the context of the Constitution “a fundamental unit possessing inalienable and imprescriptible rights which rights include a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate,” (iii) a family has a right to make a decision to live in Ireland and the State must protect such, as per article 41.1, (iii) the “birth right” of an Irish citizen to reside in Ireland.
In confirming that decision of the High Court that the decision to deport Mr Gory’s spouse was unlawful, the Court of Appeal stated as follows:
“[T]he Constitution… in practice, impose an obligation on the State (acting through the Minister) to permit a non-national reside with his or her citizen spouse in the State, in that sense that a reasonable and proportionate decision taken by the Minister, having regard to the rights and obligations set out above, could only lead to one decision.”
This is an important decision in clarifying by the Court of Appeal the very strong rights of family reunification for Irish citizens under the Irish Constitution. The Court of Appeal has put the onus on the Minister for Justice to justify why he is making the decision not grant a residence permission to a spouse of an Irish citizen, as opposed to putting the onus on the applicant to plead their case to remain.
While the decision did not provide an express right for citizens of Ireland to reside with their non-national spouses in Ireland, but however it does emphasise the obligation of the State to consider in each individual case the circumstances and provides a high threshold for the State interests to overcome to refuse residence for a non-national spouse.
We believe that this decision should have a positive effect for many irish citizens who are currently in the process of applying for visas and residence permission for their non EEA national spouses.

Berkeley Solicitors Team

IMPORTANT NOTICE REGARDING NATURALISATION APPLICATIONS AND RECKONABLE RESIDENCE

Reckonable residence is the duration of an individual’s residence in Ireland considered when examining an application for naturalisation. It is the period of lawful residence in Ireland excluding any time spent as an asylum seeker or on a student visa. To be eligible to apply for naturalisation in Ireland an individual must have acquired five years reckonable residence in Ireland, the Minister may make exceptions and waive a certain period of reckonable residence where the individual is a refugee, stateless or has Irish associations. Section 16A of the Irish Nationality and Citizenship Act 1956 (as amended) deals with the “Calculation of period of residence in relation to application for naturalisation” and makes no provision for such removal of reckonable residence.

Section 16A states as follows:

16A. 41—(1)42 A period of residence in the State shall not be reckoned when calculating a period of residence for the purposes of granting a certificate of naturalisation if—

(a) it is in contravention of section 5(1) of the Act of 2004,
(b) it is in accordance with a permission given to a person under section 4 of the Act of 2004 for the purpose of enabling him or her to engage in a course of education or study in the State, or
(c) it consists of a period during which a person (other than a person who was, during that period, a national of a Member State, an EEA state or the Swiss Confederation) referred to in subsection (2) of section 9 (amended by section 7(c)(i) of the Act of 2003) of the Act of 1996 is entitled to remain in the State in accordance only with the said subsection.

(2) This section does not apply to a person to whom the provisions of the Aliens Act, 1935, do not apply by virtue of an order made under section 10 of that Act.

(3) This section does not apply in the calculation of a period of residence in the State for the purposes of an application for a certificate of naturalisation made before [30 November 2002].
The most recent form for applying for naturalisation as an Irish citizen that was introduced in August 2016 includes a the question, “[h]ave you ever been absent from the State for more than six weeks per annum in any of the past five years?” The form requires that where an individual has been absent for more than six weeks they provide information regarding all absences from Ireland within their application.
We have received a number of recent determinations regarding naturalisation of persons who have reckonable residence in Ireland over the last five years but who have answered this question in the affirmative and provided such detail.
The decisions we have received in such applications appear to reveal a new policy of the Minister to discount absences from the State for over 6 weeks and states that these periods cannot be considered reckonable residency, therefore these periods of absence have been removed from the residency calculations. We submit that this policy is unlawful and has no basis in the legislation governing naturalisation and citizenship. There is no statutory basis for removing periods of absence from the reckonable residency of applicants for naturalisation.
We would submit that the refusal of an application for naturalisation due to a period of absence of over six weeks a year as part of a holiday during reckonable residence is unlawful, as such we submit these decisions are ultra vires or an exercise of authority that the Minister of Justice and Equality does not have.
We submit that persons applying for naturalisation should have been made aware of this policy when receiving their immigration permissions and not have an unhidden policy used against them in circumstances where they did not even know it existed.
Section 15 and 16A of the Irish Nationality and Citizenship Acts 1956 as amended clearly stipulate the only duration that may be excluded when calculating an individual’s reckonable residence is any time they spent on a student visa or while seeking asylum.
If such a time limit has become a policy it ought to be made accessible to the public, particularly to those subject to the provision and applied consistently to all cases, which is currently not being done. Moreover, such a policy would seem to be contrary to article 15.2.1 of the Constitution. As recognised in the case of Cityview Press v An Ceann Comhairle Oiliúna [1980] IR 381, the Constitution permits the Minister to merely fill in the details to give effect to principles and policies in the statute as created by the Oireachtas not to establish new principles and policies. This is a concerning and unlawful trend that seems to be an ultra vires act on behalf of the Minister of Justice and Equality.

Berkeley Solicitors Team

BREXIT AND THE PROBLEM OF THE IRISH BORDER

The renewal of a hard border between Ireland and the British province of Northern Ireland has proved one of the most sensitive issues in the wake of Brexit negotiations with the European Union. Many people fear that a reinstatement of a hard boundary will negatively impact trade and immigration between the two territories.
Whilst the British government has explicitly stated that there is not to be a reintroduction of border checks, Irish and other European governments remain in doubt. Many EU Member States have questioned the way in which post-Brexit immigration and trade may be regulated without the introduction of controls. Former deputy British prime minister Nick Clegg has gone so far as to deem Theresa May’s call for a soft border “illogical nonsense” and has further accused her of taking the public “for fools”. Nevertheless, the British government continue to maintain that the border may be controlled by mere new technology and better administration.
Taoiseach Leo Varadker has opted to take a hard-line stance on the issue, refusing to partake in the development of any such hard boundary. Mr Varadker emphatically stated: “We’re not going to be helping them to design some sort of border that we don’t believe should exist in the first place.”
A hard border has not existed between the North and South of Ireland since the 1998 Good Friday Agreement. Marking the end of the ethno-nationalist conflict known simply as “The Troubles”, the 1998 Agreement effaced the existence of any physical border. The British army checkpoints, observation posts and security barriers, which had become emblematic of the conflict, disappeared. Trade and services between the two sides began to flourish.
At present, between 23,000 and 30,000 people commute across the border. As a whole, Britain remains Ireland’s biggest trading partner, with business between the two nations supporting 400,000 jobs and generating €60 billion a year in trade in both directions. It is therefore not difficult to imagine the negative economic implications the reinstatement of a hard border may have on both nations.
Legitimate concerns have also been expressed over the implications of a physical border on immigration policy. Migration experts such as Dr. Piaras Mac Einri have claimed that Brexit negotiations may result in Ireland losing its independence in setting immigration policy. The lecturer in migration studies at University College Cork, said he fears Brexit may result in the Republic following London’s “very restrictive” migration policy. He further expressed concern about the possibility of the Common Travel Area being maintained strictly for Irish and British citizens, adversely affecting migrants. Ireland only began to experience immigration during the 1990s and, according to Dr. Mac Einri, has tended to follow UK migration policies rather than develop its own. In support of his claim, the migration expert cited Ireland’s decision to introduce and maintain the system of direct provision for asylum seekers and their families.
Whilst experts such as Dr. Mac Einri have speculated as to the effects Brexit may have on the State’s immigration policy, neither the British or Irish governments have commented on the issue.

The possibility of a renewal of a hard border between Ireland and the British province of Northern Ireland still remains unclear. The way in which the border may be controlled, without the introduction of border checks, remains an issue to be debated, as does the possible effects on immigration policy.
We remain in hope, however, that the final result of Brexit negotiations will not have adverse effects on our immigration policies in Ireland.

Berkeley Solicitors

ACQUIRING IRISH CITIZENSHIP FOR NON EEA RESIDENTS IN NORTHERN IRELAND

The UK’s impending departure from the EU causes concern to the majority of residents in Northern Ireland who voted against Brexit in the referendum.
Consequently, our office is receiving increased queries from persons resident in Northern Ireland seeking advices on acquiring Irish citizenship.
Under the terms of the Good Friday Agreement, persons born in Northern Ireland have the option of taking up British citizen, Irish citizenship, or both as dual citizens.
The Irish Nationality and Citizenship Act 1956, as amended, governs the law in Ireland regarding Irish citizenship. Under this law. Irish citizenship can be acquired by birth, descent, and through the naturalisation process.

The Act stipulates that any person born on the Island of Ireland, is an Irish citizenship by birth subject to the important proviso at Section 6 A of the Act, relating to the children of non nationals.

Section 6 A stipulates that a child born in the island of Ireland to non-nationals parents is only entitled to Irish citizen if one of the parents have been lawfully resident on the island of Ireland for a total of three years during the previous four years preceding that child’s birth. Periods of residence excluded from the reckonable residence are residence for the purposes of study or in the asylum process.

Therefore non EEA nationals lawfully residing in Northern Ireland, who are not residing on the basis of student visa or asylum seekers, can apply for an Irish passport for the child if they have at least 3 years of lawful residence before the child’s birth.

Acquiring Irish citizenship through the naturalization process is governed by Part III of the 1956 Act. The granting of Irish citizenship through naturalisation is based on the individual satisfying the statutory conditions for naturalisation, which includes having acquired five years of reckonable residence in the jurisdiction of the State, as opposed to the Island of Ireland. A three year reckonable residence rule is applied to the spouses of Irish citizens.

Therefore, residency in the North of Ireland is not reckonable for the purposes of naturalization to become an Irish citizen, and a non EEA national lawfully resident in Northern Ireland for a five year period is not eligible for naturalization on the basis of their independent circumstances.

The Act provides for an exception to this rule – where the application is grounded upon being the spouse or civil partner of an Irish citizen, then lawful residence on the Island of Ireland is counted as reckonable. Thus, the non EEA national spouse of an Irish citizen lawfully resident in Northern Ireland for at least a three year period would be eligible to apply for naturalization.

It is of relevance that Senator Niall O’ Donnghaile recently asked the Minister for Justice to reconsider these laws in light of the Brexit negotiations.
“The need for the Minister for Justice and Equality to outline if following the triggering of Article 50 in Britain and the commencement of the Brexit negotiations, the Government has given due consideration, as part of its own negotiating stance, to amending the 2004 Irish Nationality and Citizenship Act, to allow non-Irish and non-British nationals resident in the North to apply for Irish citizenship?
The terms of the Good Friday Agreement, currently allows for those born anywhere on the island to qualify for Irish citizenship however this has led to much concern amongst the North’s ethnic minority communities.”

In respect of Senator Niall O’ Donnghaile’s question to the Minister, to Minister responded as follows:

From a Brexit perspective, I think it is important to be clear about its scope and indeed what is outside the scope of the Article 50 negotiations as they relate to residency and other rights. In this context, the negotiations are primarily concerned with the impacts on EU nationals in the UK (including Northern Ireland) and the corollary of UK nationals in the EU. This specific strand of the negotiations is being prioritised for early consideration between the negotiating parties.

This does not change the right of persons born under the Good Friday Agreement in Northern Ireland. In other words, persons may apply for Irish citizenship in accordance with the legislative changes arising from the Good Friday agreement. The question of citizenship is a national competency. Obviously Ireland is maintaining very close contact with the negotiations.”

Berkeley Solicitors

RIGHTS OF DUAL NATIONALS TO FAMILY REUNIFICATION IN EU TREATY RIGHTS LAW

Under EU law, EU citizens who are exercising their EU treaty rights by working or actively seeking employment in another EU country have the right to have their family members live with them. However, the position is much less clear for those with dual-nationality EU citizenship, when the EU citizen is living in the country of which they are a citizen.

Regarding the position under Irish law, the INIS website states;

“Please note that we cannot accept applications under EU Treaty Rights provisions from non-EEA family members of Irish nationals. Directive 2004/38/EC on the right of citizens of the EU and their family members to move and reside freely within the territory of the Member States applies only to Union citizens who move to or reside in a Member State other than that of which they are a national.

Exceptions to this apply only in cases where the non-EEA national family member has previously held a residence card of a family member of a Union citizen which has been issued by another Member State under Article 10 of the Directive.”

The issue came to a head in the 2011 UK case of McCarthy v Secretary of State for the Home Department, in which Mrs McCarthy was a dual national of the United Kingdom and Ireland. The European Court of Justice held that Mrs McCarthy could not exercise her EU Treaty rights so that her Jamaican spouse could live with her in the UK. The court held that Directive 2004/38 only applies to those EU citizens who have exercised their right of free movement within the EU. Therefore, the fact Mrs McCarthy had not moved between EU Member State was sufficient to exclude her from Directive 2004/38, and she had to exhaust the national remedies under UK domestic immigration law.

Many believe that this approach- that one loses their EU rights after becoming a citizen of the EU state one is living in- is wrong.

In May of this year, the European Court of Justice recently gave judgment in a similar case. Lounes C-165/16 concerned a Spanish citizen who was living and working in the UK and eventually naturalised as British. She applied for a residence card for her Algerian husband under EU law. The High Court asked the ECJ whether

“…Where a Spanish national and Union citizen:

  1. moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC (1); and
  2. resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and

iii. subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and

  1. several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;

are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”

The ECJ responded that the couple were not beneficiaries under the Directive. However, they ruled that the conditions for finding a derived right of residence for family members under domestic law should not be stricter than those provided under the EU Directive.

This means that dual nationals should not suffer any more difficulties in obtaining rights of residence for their family members than if they were nationals of one EU country.

However, in Ireland, it is often the case that Irish citizens have higher financial thresholds to overcome than EU citizens, when it comes to applying for family members to join them in the State.

The INIS Policy Document on Family Reunification states that Irish citizens, in order to sponsor an immediate family member

“must not have been totally or predominantly reliant on benefits from the Irish State for a continuous period in excess of 2 years immediately prior to the application and must over the three year period prior to application have earned a cumulative gross income over and above any State benefits of not less than €40k.”

We hope that Irish Government will take the Lounes judgment into account and bring the requirements for family reunification of non-EEA nationals with Irish nationals in line with the EU Directive.
We look forward to any comments or questions you may have on this case.

BERKELEY SOLICITORS

REFUSALS OF LEAVE TO LAND

The recent news of a Brazilian woman who was detained overnight in Mountjoy Prison by Garda immigration officers has created waves of outcry from opposition politicians and members of the public. Paloma Aparezida Silva-Carvalho (24) was detained upon arrival in Dublin Airport on 18th July, despite the fact she was non visa required, she had proof of return flights home, and there was no obvious reason for the decision to refuse her leave to land.   Ms Silva-Carvalho was visiting Ireland on holidays, to stay with a Galway family with whom she had worked as an au pair.

Brazilian citizens, like American, Australian, Canadian citizens for example, do not need a visa to visit Ireland for less than 90 days, and therefore do not need to go through a pre entry clearance. This is to facilitate their easy travel to the State for short trips.

The Muller-Wieland family, who are close friends with Ms Silva-Carvalho, having previously employed her as an au pair, desperately sought the help of local politicians and solicitors to fight against Ms Silva-Carvalho’s deportation. Although the effort to stop the deportation failed, gardaí later rang to inform the family that Ms Silva-Carvalho was released from Mountjoy and that she was allowed to stay in Ireland for ten days.

Ms Silva-Carvalho’s traumatic experience with airport immigration control has prompted others to speak out about their similar experiences of arriving in Dublin. One Brazilian woman, who visited Ireland last summer to see her terminally ill grandchild, was left in shock at her treatment by immigration officers, who refused to believe that her daughter and son-in-law could afford to look after her during her stay.

Our offices at Berkeley Solicitors are currently representing a client in the High Court who had a similar experience. She arrived at Dublin airport, having already been granted a visit visa to enter the State. She was refused leave to land on entry to the State for the reason of financial grounds, despite the fact she had already satisfied the visa officer that she and her sponsor had sufficient financial resources to support her for her stay.  At the discretion of the immigration officer she met, she was refused leave to land, imprisoned, and removed to another country where she spent a week in detention, before being returned to her home country. This all happened without access to any legal advices.

Needless to say, this was a shocking and distressing incident for our client, as it was for Ms Silva-Carvalho and others who have gone through similar experiences on visiting Ireland. Furthermore, refusal of leave to land remains a serious incident on a person’s immigration history that would have to be declared for all future visa applications.

We are challenging this decision of refusal of leave to land made by garda immigration officers on the basis that our client had a legitimate expectation that they would be permitted to land, having been issued visas prior to arrival in Ireland. We also argue that immigration control failed to properly regard the evidence before them that showed our clients had sufficient financial support to maintain themselves in Ireland, and that they had already been granted a visa on the basis of sufficient financial resources.

Whether or not a non national carries a visa when entering the State, Immigration officers retain a right to refuse to any non non national under Section 4 (4) of the Immigration Act 2000 for one of a specific list of reasons, such as the non national is not in a position to support themselves or their dependents or “that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national.”

It is essential that this potentially very wide ranging power is exercised by immigration officers in a very careful and restrained manner.

The fact that those who are refused leave to land do not normally have access to legal representation, and are detained by immigration control in prisons, as opposed to immigration detention centres, has been condemned by the UN Committee on Torture. However, Dublin Airport has announced plans to build a purpose-built immigration detention centre on site, beginning in the Autumn. Although this will not solve every issue in regards to how Irish authorities treat immigrants upon arrival in the country, it will certainly mitigate the ordeal of    persons such as Ms Silva-Carvalho, and our client,  have gone through, where they came to Ireland as visitors, but were treated as criminals and subjected to degrading treatment, often with no sufficient reason given.

 

BERKELEY SOLICITORS

DIPLOMATIC RELATIONSHIP (MISC ) BILL 2017

The Dáil debates regarding the Diplomatic Relations (Misc) Bill 2017 have reached their second stage of talks. The Bill purports to amend the Diplomatic Relations and Immunities Act 1967, as well as to enhance the clarity of various arrangements with respect to the staff of diplomatic missions and international organisations.

If introduced (which seems likely), one of the main developments of the Act will be the explicit exclusion of staff who work at diplomatic missions, such as embassies, from entitlements to citizenship. Normally, residents in the State who have lived here for five of the last nine years, or who are married to an Irish citizen for three years may apply for naturalisation. The reasoning, however, behind this new provision is that staff of these missions are excluded from mainstream immigration controls, and often don’t pay tax in Ireland.

Part 3 Sections 9 and 10 of the Bill may be of particular interest to our clients, as they exclude family members of, and children born to the staff of these missions from being able to acquire Irish citizenship. This includes the families of domestic workers.

This provision comes after the 2016 judgment in the Rodis and Tolentino case, in which the High Court held that two members of staff of diplomatic missions were entitled to have their residence in the State as eligible for the purposes of naturalisation.

Our own offices currently represent staff of diplomatic missions, many of whom are in an unfortunate limbo between not having many of the benefits afforded to diplomats,  yet also not being treated as Irish residents.

TDs in the Dáil debates have argued against the provisions of Sections 9 and 10, with Deputy Seán Crowe of Sinn Féin saying “The section seeks to amend the Irish Nationality and Citizenship Act 1956 to provide that any period of time spent in the State while exempt from immigration controls, as workers in embassies are, is not reckonable for residency in the context of naturalisation. I believe that this is an important right that should not be undermined or interfered with in any way. I am also concerned that the section states that children born to diplomats and associated persons who are exempt from immigration controls do not, except in certain circumstances, qualify for Irish citizenship by birth.”

For those who may be in this situation, we would advise that if you wish to apply for naturalisation, the sooner you do so the better, as once the Bill passes through the Dáil and becomes an Act, your entitlements to naturalisation may be withdrawn. Deputy Charles Flanagan, Minister for Foreign Affairs clarified “that the amendment will apply prospectively only and will not prejudice any period of residence that would have been deemed reckonable for naturalisation purposes prior to the passing of the present Act.”

The Bill does also have some positive aspects to it for staff of diplomatic missions. It will further clarify and emphasise the need for embassies to pay their staff the minimum wage, and to engage in workplace inspections. Families of staff will also be exempt from immigration controls, thus honouring the staff’s right to family life whilst working in Ireland.

If this Bill affects you, or if you have any questions regarding its provisions, please don’t hesitate to contact us.

BERKELEY SOLICITORS

BAN ON VISAS FOR LIBYAN NATIONALS IN IRELAND

While Trump’s ‘Travel Ban’ may have made international headlines and drawn widespread criticism, Minister for Justice Frances Fitzgerald’s severe restrictions on Libyan nationals obtaining permission to enter Ireland has somehow escaped such public exposure and condemnation.

Restrictions on the considerations of Irish visa applications from Libyan nationals, that have existed since 2014, have recently been reviewed by the Ministry for Justice, with the decision that all restrictions should remain in place.

Visas from Libyan nationals have been subject to an indeterminate suspension of considerations, excepting those with sponsorship from An Bord Bia and those in the oil industry.

This oppressive ban has hit Irish families with Libyan relations hard, as relatives are refused visas for no other reason than their nationality.

In the recent review of the restrictions, Minister Frances Fitzgerald said she took into account the ‘ongoing security situation in Libya’, and the ‘potential economic impact of the restrictions’. The situation in Libya does indeed remain dangerous, with intense fighting breaking out in areas, and the probability of terrorist attacks and kidnappings remaining high.

However, the restrictions in place by the Irish Government amount the a blanket ban on family reunification for many Irish citizens whose family members are Libyan citizens.  The effect of the ban is causing serious damage to Libyan citizens, who are being excluded from the normal visa application process.

Our offices is aware of a number of these cases and we strongly believe that the blanket ban against Libyan citizens is an unlawful discretion of the Minister’s discretion, and in breach of our clients’ rights under Article 41 of the Constitution and Article 8 of the European Convention of Human Rights, both provisions protecting an individual’s right to family life.

Our clients is currently acting on a number of cases in the High Court to challenge the lawfulness of the policy. One such case is concerned with the refusal to deal with visa applications of two Libyan nationals who wish to visit their son and his family in Ireland. the family meet all the normal requirements for the visa, except for the fact of their Libyan nationality. The cases are currently pending before the High Court awaiting a hearing date.

It is argued on behalf of the family has argued that the Minister for Justice has unlawfully fettered his discretion in adopting a fixed policy of refusing to accept visa applications based purely on the nationality of the applicants.

No such restrictions are in place in the United Kingdom or the 26 EU countries in the Schengen Area.

We believe that the current policy in place in Ireland is discriminatory and overbearing and hope for a successful court ruling against the policy as it stands.

BERKELEY SOLICITORS

POLYGAMOUS MARRIGES IN IRELAND – THE CASE OF H.A.H AND S.A.A

On 15th June 2017, the Supreme Court case of H.A.H v S.A.A and Others ruled that the first marriage of a Lebanese man with two wives would be held as valid under Irish law, while his second marriage and all potentially subsequent marriages would not be legally recognised. The appeal followed from the case’s previous ruling in the High Court in 2010 which held that polygamous marriages were incompatible with the understanding of marriage in Ireland and in the Irish Constitution, and were thus entirely invalid.

 

This case bears importance for family reunification cases for those in polygamous relationships, applying for spouses to join them in Ireland.

 

The appellant husband is a refugee and naturalized Irish citizen, and came to Ireland as an asylum seeker in 1998. After he had been recognised as a refugee, his second wife and some of his children joined him in Ireland, under the Refugee Act 1996, which gives refugees the right to apply for their family to join them. She is now a naturalized Irish citizen.

 

In 2002, after he was granted Irish citizenship, the husband applied for his first wife to join him, but this request was denied by the Minister for Justice. The husband then began judicial review proceedings to quash that decision. The current case deals with both the Refugee Act 1996, which entitles a refugee to be joined by family members, and the Family Law Act 1995 which entitles a spouse to make an application to declare that a marriage was valid at its inception.

 

The Attorney General argued that neither the first nor second marriage should be legally recognised, as public policy in Ireland objects to the potential effects of polygamous marriages.

 

Ms. Justice O’Malley, who gave the leading judgment which was supported unanimously by the six other judges, held that a marriage that is capable of being potentially polygamous has legal recognition in the State, and that this legal validity will not be lost retrospectively if the husband contracts another marriage. As for any marriages subsequent to the first in a polygamous relationship, these would not be held valid, as to do so would contravene the principle that “marriage is a partnership based on equality of rights”. This means the second wife’s submission- that she was legally married to the appellant and that Irish law should recognise actually polygamous marriages- fails.

 

The judge, however, stressed that this did not mean that polygamous marriages would be denied legal effect in all circumstances. She also made special note of family reunification issues in immigration law, saying that in this area “It may well be desirable to have some regard to the reality of familial bonds. I note that it is the policy of the Department of Justice, when considering an application for family reunification in respect of the children of a refugee, to disregard the marital status of a child’s parents. That is in my view entirely correct. I would simply add that there is probably scope, having regard to the powers of the Minister, for a discretionary approach to the question whether the mother of a child should be admitted even where she is not recognised as a wife of the applicant. However, I stress again that these are policy matters which are, primarily, for the Oireachtas to consider.”  This discretionary approach may help curb some of the difficulties experienced by families when applying for family reunification that do not fit the typical family portrait.

 

It is interesting to compare the emerging legal position on polygamous marriages in Ireland to the well established position in the UK.

 

The Immigration Rules Part 8 (para 278-296) relate to family reunification issues for polygamous relationships.

 

(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263220/polygamous.pdf)

 

If a marriage is one that is recognised in the country in which it took place, was properly executed according to the laws of that same country, and there was nothing in either party’s country of domicile that restricted them from entering into the marriage, then the marriage is valid whether or not it is polygamous.

 

The application of a spouse within a polygamous marriage for leave to enter/remain in the UK should be refused if the applicant’s husband is also married to another woman who has entered the UK since marriage. Therefore, it is not the order in which polygamous spouses marry that is crucial, but the order in which they go to the UK. This is according to Annex G of the Immigration Rules (Part 8).

 

Children of polygamous spouses

If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the UK, any children he or she had by that spouse may not qualify for entry to the UK, depending on the circumstances and in particular the operation of the Legitimacy Act 1976.

 

Polygamous spouses entering in their own right

A polygamous spouse may have an entitlement to enter the UK in his or her own right – for example as a returning resident, as a visitor, or as a student. They will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if it would result in the formation of a polygamous household in the UK.

 

Termination of previous marriage

Even where it is suspected that a “divorce of convenience” has taken place, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result. A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned.

 

Potentially polygamous marriages

Potentially polygamous marriages where the husband/wife is domiciled in the UK have been considered valid in UK law since in 1982. In cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with husband/wife entry clearances, subject to the usual criteria of the Immigration Rules being met. Such marriages will, however, be made void by any subsequent marriage by one of the parties or by an annulment.

 

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