Tag Archive for: ECHR

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Berkeley Solicitors would like to congratulate our clients who have received a positive judgement from the High Court today in their Judicial review proceedings.

The applicant, a minor Somali citizen, issued proceedings through her aunt and next friend challenging a decision of the Minister for Justice to refuse the her visa appeal to join her aunt and family in Ireland following the death of both her parents in Somalia.

We argued on behalf of our clients that the Minister acted in breach of fair procedures on a number of grounds. In refusing to grant the visa, it was submitted that the Minister failed to fully consider the best interests of the applicant in light of her particularly vulnerable position as a 14-year-old orphan residing outside her country of origin, without familial support.

It was submitted by the Respondent that the Applicant had failed to show sufficient evidence of a familial link between the applicant and the sponsor. Furthermore, it was submitted that the sponsor did not prove that she ‘is, or ever had been, socially or financially dependent on the sponsor’. The Minister also considered that the adoption of the Applicant was not recognisable under Irish law in light of the fact that there is no bilateral treaty in existence between Ireland and Somalia governing adoptions and similarly, that Somalia is not a party to the Hague Convention.

As a result, the Minister held that neither Article 41 of the Constitution nor Article 8 of the ECHR protecting the right to family life were applicable to the Applicant and the sponsor.
In setting aside the decision of the Minister, Mr Justice Barr held that the decision maker erred on a number of grounds in failing to recognise that a 14-year old orphan, ‘without any family support in a very unstable country, was not in an extremely vulnerable position, such that it constituted exceptional circumstances’.

Acknowledging the importance of family reunification in situations where individuals had fled persecution, Justice Barr held the Respondent was wrong in concluding that ‘there was no documentary evidence of familial relationship between the applicant and sponsor’. It was accepted that a number of important documents to this effect had been submitted by the Applicant, including a court order transferring guardianship of the application to the sponsor.

Furthermore, the emphasis placed by the decision maker on the issue of adoption as a basis for refusal, ‘an argument that was never put forward by the applicant, nor was put to her for comment’, was held to have breached the applicants right to fair procedure, rendering the decision ‘fatally flawed’.

Referring to the case of Tanda-Muzinga v France (2260/2010), the following passage was highlighted by the Court:
‘there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union’.

It was highlighted by the Court that this obligation is envisioned under Irish law in s.56 of the International Protection Act, 2015. Similarly, in line with our duties under Article 10.1 of the Convention of the Rights of the Child, that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner’.

Significantly, it was held that the Appeals officer hadn’t sufficiently considered ‘the extremely adverse consequences’ the refusal decision represented for the applicant. As a result, the Court held that the decision clearly constituted ‘exceptional circumstances of a humanitarian nature, which would have justified a departure from the financial requirements of the policy’.
The Judgement will be available on the High Court webpage in the coming days.

Our office wishes to congratulate our clients on this positive development in their case today and would also like to thank our counsel for their dedicated work on this case.

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

The Supreme Court has recently delivered a judgement in Jaimee Middelkamp v Minister for Justice and Equality and Irish Human Rights and Equality Commission [2023] IESC 2.

 

The case concerned a Canadian woman who was resident in Ireland pursuant to the Working Holiday Authorisation Scheme, which allows participants between the ages of 18 and 35 to travel to the State to study and work for a limited maximum stay of two years. Ms Middelkamp arrived in the State in 2018 under this Scheme.

 

Ms Middelkamp made an application under s.4(7) of the Immigration Act 2004 before the expiry of her permission, seeking an extended entitlement to remain in Ireland. In her application, Ms Middelkamp highlighted that her husband, a Canadian citizen, was to remain resident in the State for two more years to pursue his studies and that she did not wish to separate from him.

 

This application was refused by the Minister in January 2020, citing the interests of public policy and the common good in maintaining the integrity of the immigration system. The Minister’s decision stated that the appellant’s rights to family life under Art.8 ECHR were not affected by this decision.

 

Ms Middelkamp commenced judicial review proceedings seeking to quash the Minister’s decision, arguing that this violated her right to family life under Art.8 ECHR. The High Court granted an order of certiorari quashing the Minister’s decision. This was then appealed to the Supreme Court. The Supreme Court found that Barrett J in the High Court erred in his decision and upheld the decision of the Minister to refuse an extension of Ms Middelkamp’s permission.

 

Hogan J of the Supreme Court found that the Minister’s decision did interfere with Ms Middelkamp’s right to family life under Art.8(1) ECHR, as its effect was to oblige her to separate from her husband for two years. However, he found that this interference was justified as being necessary in a democratic society. Hogan J highlighted that there was a strong public interest in ensuring that the strict terms of the Working Holiday Authorisation Scheme were adhered to, the terms of which Ms Middelkamp expressly agreed to. If the terms of such Schemes were not adhered to, the State’s capacity to operate these limited-time Schemes would be compromised.

 

Hogan J found that the Minister’s decision letter gave sufficiently detailed reasons for the refusal. He found that although the Minister was in error in stating that Ms Middelkamp’s Art.8 ECHR rights were not engaged by the decision, it was implicit in the decision that although these rights were engaged, they did not prevail against broader public policy objectives.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

SUPREME COURT DELIVER JUDGEMENT IN IMPORTANT CASE CONCERNING THE ASSESSMENT OF APPLICATIONS FOR LEAVE TO REMAIN

The Supreme Court have delivered a seminal judgement in the case of MK(Albania) v Minister for Justice v Minister for Justice and Equality [2022] IESC 0000.

 

The Supreme Court have issued five separate judgements in respect of this case.

 

The majority of the Supreme Court, including the Chief Justice ruled not to overturn the judgement of the High Court. The High court had determined in this case that a person “with a non-settled or precarious residential status cannot assert Article 8 rights, unless exceptional circumstances arise. Accordingly, a proportionality assessment does not arise”.

 

There are two dissenting judgements of Ms Justice Baker and Mr Justice Mac Menamin who ruled that they would have quashed the decision under challenge.

 

The case involved a young person from Albania who came to Ireland as a minor at the age of 16. An application for international protection in the State was submitted on his behalf. His applications for refugee status and subsidiary protection were refused. His application for leave to remain in the State was then considered and ultimately refused. The Applicant was thereafter issued with a deportation order requiring him to leave the State and remain outside the State indefinitely. The Applicant has lived in Ireland for six years, has went to school here, reached the age of majority here and lived in foster care in this State.

 

The decision to refuse him leave to remain in Ireland and to issue him with a deportation order found that given the precarious nature of his residence in Ireland, as a failed asylum seeker, Article 8 of the European Convention on Human rights was not engaged in his case.

 

The Supreme Court Justices all held that this was not in fact correct. The Court found that Article 8 ECHR was in fact engaged in the case, however the majority judgement held that in any event if the decision maker had correctly assessed the case in substance. The Court found that it would only be in the most exceptional of cases, with wholly exceptional circumstances, that an infringement of an applicant’s private life rights would outweigh a State’s legitimate aim of protecting the integrity of the immigration system.

 

Chief Justice O’Donnell in his Judgement outlined the key question at issue in this case:

 

how should the question of the impact upon the applicant’s private life of a decision of a refusal of leave to remain and/or removal from Ireland be approached and analysed under Article 8?

 

It is accepted in the Supreme Court judgements that the decision made by the Minister in this case followed the legal tests as outlined a case from the United Kingdom, R (Razgar) v. Secretary of State for the Home Department [2004] UK HL 27, [2004] 2 AC 368   as adopted in this State by the Court of Appeal case of C.I. & Ors. v. The Minister for Justice, Equality & Law Reform [2015] IECA 192, [2015] 3 I.R. 385.

 

Mr Justice O’Donnell confirmed that this was not the correct approach in these cases. The approach in those cases would appear to be that exceptional circumstances need to arise before Article 8 is engaged. The Supreme Court found this to be incorrect, it should have been held that Article 8 is engaged (even if the applicant’s permission is “precarious”) and the decision maker should then have assessed whether the interference with the rights was proportionate to the legitimate aim being pursued. There is no question of the rights protected by Article 8 being breached in this case – the only thing in issue is the manner in which that conclusion should have been reached.

 

The Court did state that in cases of “settled migrants” whose permission in the State could not be deemed precarious, there may be more possibility that an applicant’s Article 8 rights might more readily outweighed by the legitimate interests of the State.

 

Mr Justice O’Donnell held:

 

The point has been reached where I think it should be recognised that it is in the nature of any decision which refuses leave to remain in the country and renders future residence unlawful and perhaps, even more clearly, where the decision is one for forced removal, that such a decision is normally likely to have an impact of such gravity on an individual who has been living lawfully in Ireland for any appreciable time to engage the operation of Article 8. This is so even if that residence is precarious on the basis of a permission that is necessarily temporary and limited and where the decision to refuse leave to remain, or indeed to deport, is no more than the enforcement and application of the limitation of that permission or its termination in accordance with its terms. To that extent, I agree that the applicant’s analysis is correct and, accepting for the moment the Razgar test as a template for the Minister’s decision in this case, the applicant’s case ought to have been assessed under the fifth limb of the test, that is, whether such interference was proportionate to the legitimate public ends sought to be achieved.

 

The Court held clarified that that while accepting the decision is invalid, I would refrain from ordering certiorari, on the grounds that the outcome would inevitably be the same. Instead for the reasons I have tried to set out, I do not consider that the decision of the Minister was invalid.

 

The Court held that there was no obligation on decision makers to assess applications in a particular format and what was important is that rights are “respected and not breached” and in compliance with The European Convention on Human Rights Act, 2003.

 

In Mr Justice Hogan’s judgement the Court addresses the query as to whether the applicant could invoke Constitutional rights in these proceedings, namely Article 40.3 privacy and Article 40.6 associational rights:

 

It follows, therefore, that, based on the NHV analysis, non-nationals enjoy the protections afforded by Article 40.3 and Article 40.6.1.iii (and the other relevant constitutional provisions) in respect of these privacy and associational rights. To that extent, therefore, non-nationals enjoy (in principle, at any rate) a combination of privacy, associational and autonomy-style constitutional rights which correspond to the omnibus description of the right to a private life contained in Article 8 ECHR.

 

The other judgements outline this case was not the appropriate case to consider Constitutional rights as they interact with Article ECHR rights.

 

Ms Justice O’Malley agrees with the majority judgment in her judgement.

 

Mr Justice Mac Menamin in his dissenting judgment respectfully disagrees with the majority and finds that the question of methodology cannot be separated from the substance of the decision.

 

In concluding that he would quash the Minister’s decision Mr Justice Mac Menamin held the decision-making process in this case led to a test which commenced by asking whether Article 8 is engaged, which was answered by considering the gravity of the consequences, rather than whether the privacy and family right actually arose for consideration on the facts.

 

Mr Justice Mac Menamin concludes:

 

There is, at the heart of this appeal, a fundamental question of legal principle concerning rights and remedies. I respectfully, therefore, dissent from the judgment of the majority as to the absence of any remedy. In the first instance, I would have granted the appellant an order of certiorari of the Minister’s orders in this case. But, failing that, I would, alternatively, have granted a declaration that, by virtue of the respondent’s breach of his rights under Articles 8 and 13 of the ECHR, the appellant was entitled to a declaration that the respondent had breached her statutory duty under s.3(1() of the 2003 Act. In my view, such a conclusion must follow from the application of the soundest of all legal principles, that is the protection of the rule of law

 

In her dissenting judgement. Ms Justice Baker concurs with Mr Justice Mac Menamin and finds:

 

“Mac Menamin J. notes, that there are few cases where the interests of a precarious unsettled migrant with a personal family or private life could outweigh the significant interests of the State.”

 

Ms Justice Baker holds that the decision refusing the applicant leave to remain should have been quashed and re assessed by the Minister on the basis that:

 

“That the process be correct, and be seen to have been correctly applied, is not a mere formality…

…

…the essence of administrative law is to ensure that the process followed by an administrative decision maker were correct, not because due process is an end in itself, 4 but because a person who invokes a process is entitled to understand that process, to know that it was properly applied, and as a result to be in a position to know that the decision maker acted lawfully.”

 

This important Judgement will undoubtedly have an impact on how applications for leave to remain are to be considered by the Minister in Ireland from now on. It can no longer be the case that an applicant needs to show exceptional circumstances prior to being entitled to a proportionality assessment of any infringement of their private and family life rights under Article 8 ECHR.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of O v Minister for Justice [2022] IEHC 617.

 

The case concerned a Nigerian citizen who applied for refugee family reunification for his non-marital partner and three children in Nigeria pursuant to s.56 of the International Protection Act 2015. The applications for his children were granted, however the application for his partner was refused. The applicant sought to challenge this decision by way of judicial review proceedings in the High Court, seeking to quash the decision. The Court refused the application and did not grant the relief sought.

 

The application was refused on the basis that s.56(9) of the 2015 Act only permits unification with a marital partner, whilst the applicant’s partner was not married to him. Non-marital partners are covered by a separate administrative non-EEA Family Reunification policy.

 

The applicant claimed that s.56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the ECHR. He applicant also claimed that the administrative policy would not afford him reunification with his partner because he was unable to comply with its financial requirements. He argued that limiting statutory family reunification to a spouse will unfairly split non-marital families by leaving one parent isolated from the other and their children. The applicant argued that this limitation is contrary to Articles 40.1 and 40.3 of the Constitution on the right to equality and Article 41 family rights, as well as his rights under the ECHR to non-discrimination. The applicant also sought constitutional protection for his right to cohabit.

 

The Court rejected the argument that the applicant was being treated less favourably than a married refugee who has been separated from their spouse. The Court in making this determination considered the Minister’s submissions that the applicant was married to a third party and that this marriage had not been dissolved. The Court was satisfied that the applicant’s status is therefore that of a married person and he could not assert a constitutional right to equality of a non-married person to be treated equally to a married person.

 

The Court did not accept the assertion by the applicant that his non-marital relationship is akin to the marital relationship that is recognised under Irish law. The Court stated that insofar as the applicant contended that the relationship between him and his partner was akin to marriage, it could only be akin to a polygamous marriage, which is not recognised in Irish law.

 

In considering the applicant’s argument that there is a constitutional right to cohabit, the Court rejected that such a right existed. The Court further concluded that no EU rights are engaged in the application of s.56 of the 2015 Act and therefore the ECHR is not applicable.

 

The Court therefore found that it is not unlawful that unmarried partners are not included as family members under s.56 of the Act. The Minister has discretion in assessing the extent of family reunification to be afforded to refugees and is entitled to limit this. The Court found that applicants have a non-statutory procedure which they can use to apply for their unmarried partners, via a long-stay visa application, asking the Minister to disapply financial criteria if necessary. The Court found that the State had not breached the applicant’s constitutional rights by providing a different, and potentially more restrictive, non-statutory administrative policy for non-marital family reunification.

The full judgement can be found here:

https://www.courts.ie/acc/alfresco/d322aab5-cda8-461b-b019-dc363a071c70/2022_IEHC_617.pdf/pdf#view=fitH

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.