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UK GOVERNMENT CONFIRMS PEOPLE BORN IN NORTHERN IRELAND ARE TO BE CONSIDERED EU CITIZENS FOR CERTAIN IMMIGRATION PURPOSES

The UK Government has announced a change to its immigration laws following a landmark court case involving Derry woman Emma De Souza and her US-born husband Jake De Souza.

The case concerned the right of people in Northern Ireland to be considered Irish or British citizens, or both, as per the terms of the 1998 Good Friday Agreement.

Mr De Souza had applied to the UK Home Office for an EEA residence card to live and work in Northern Ireland on the basis of his marriage to Ms De Souza in 2015. The application was rejected on the basis that Ms De Souza was considered a British citizen because she was born in Northern Ireland, and therefore she was not entitled to EU free movement rights. This was despite the fact that Ms De Souza had never held a British passport and identified as an Irish citizen.

The UK Home Office originally argued that people born in Northern Ireland are automatically British citizens according to the 1981 British Nationality Act, even if they identify as Irish. It stated that the only way it could deal with Mr De Souza’s application was if Ms De Souza renounced her status as a British citizen.

Ms De Souza argued that the UK’s immigration laws were incompatible with the right of Northern Irish people to be accepted as Irish or British, or both, under the Good Friday Agreement.

The UK Home Office has now made a change to its immigration laws, confirming that British and Irish citizens born in Northern Ireland will be treated as EU citizens.

This decision has far-reaching consequences in light of the UK’s EU Settlement Scheme, which is open for applications until June 2021. The Scheme allows EU citizens and their family members to apply to reside in the UK post-Brexit. Until now, family members of British or dual British-Irish citizens from Northern Ireland were ineligible to apply for status under the Scheme.

All citizens in Northern Ireland will now have the right to apply for a non-EEA family member to remain in the UK through the Scheme, up until June 2021. This means that British citizens in Northern Ireland now have more rights than their counterparts in England, Wales and Scotland.

Speaking about the announcement, Ms De Souza commented:

“These changes are on the back of years of campaigning for the full recognition of our right to be accepted as Irish or British or both under the Good Friday Agreement.

We have always contended that no-one should be forced to adopt or renounce a citizenship in order to access rights, to do so goes against both the letter and the spirit of the Good Friday Agreement, the Home Office now concedes that point.

These changes will only apply to Northern Ireland and recognise the unique status that the region holds within the United Kingdom. Something that we have longed called for.

We personally know a number of families that will benefit from this change and are filled with joy and relief that these families will not face calls to renounce British citizenship or face years in court like we have.”

UPDATE ON BREXIT AND WHAT IT MEANS FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS EXERCISING THEIR EU TREATY RIGHTS IN IRELAND

At midnight on 31st January 2020, the United Kingdom left the European Union on the basis of the Withdrawal Agreement. This means that the transitional period has commenced and will run until the 31st December 2020.

The Department of Justice and Equality, has published a communication on their website aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen.

The Department has confirmed that during this transition period, which will last until at least the 31st December 2020, EU rules and regulations will continue to apply to the family members of British citizens who are currently resident in Ireland, that is to say they will continue to benefit from Directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2015 which provide for the rights of British citizens to live and work in the EU.

Unfortunately, the Minister has yet to clarify what plan is in place for the family members of British citizens who currently hold EU Fam residence cards after the 31st December 2020.

Furthermore, the update is also silent on the policy to be applied to the family members of British citizens who will have EU residence card and visa applications pending at termination of the transition period.

It is indicated that the Department will announce details of arrangements for non-EEA family members of British citizens closer to the end of the transition period.

This lack of clarity on the status of such applications after the 31st December 2020 is disappointing.

Meanwhile, the EUTR Section of the Irish Naturalization and Immigration Service are in delaying issuing decisions in most applications well beyond the permitted timeframes. For example, many of the residence card applications are taking approximately ten months when the EU Regulations require that they are determined in a six-month period.

This delay is very unsatisfactory especially for the family members of British citizens who are now concerned regarding the pending deadline of the 31st December 2020.

It is advisable to regularly check the Department’s website. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

We understand many people are concerned regarding the uncertain impact of Brexit on their applications and right to reside and access the labour market in Ireland. If you or your family members are affected please do not hesitate to get in contact with our office.

The update can be read in full here.

 

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

Applications for visas and residence cards for family members of EU citizens pursuant to EU Treaty Rights often require proof that the Applicant is dependent on their EU Citizen family member.

The concept of dependency is not defined in the Citizens’ Rights Directive (Directive 2004/38/EC) or the European Communities (Free Movement of Persons) Regulations 2015. However, case law of the Court of Justice of the EU has established that an Applicant must show that they are not in a position to support themselves, having regard to their financial and social conditions.

Thus, while dependency is often assessed in terms of the existence of financial support between the Applicant and the EU Citizen, it can also arise from social, emotional and medical circumstances.

Several recent judgments of the High Court have shed some light on the importance of social dependency in EU Treaty Rights cases.

The case of Chittajallu v The Minister for Justice and Equality, Record Number 2019/28, in which Berkeley Solicitors were acting for the Applicant, involved a British citizen who submitted a visa application for her dependent mother.

In his judgment delivered on 11th July 2019, Mr Justice Barrett highlighted that the Minister had not properly considered the issue of social dependency arising from the Applicant’s medical circumstances in the initial decision.

Berkeley Solicitors also acted for the Applicant in the case of Agha v The Minister for Justice and Equality, Record Number 2019/374, the facts of which similarly involved a British citizen who applied for a visa for his elderly dependent mother who had serious health issues and was not capable of living independently.

In his judgment of 23rd December 2019, Mr Justice Barrett states at paragraph 6:

“There is a further separate error presenting in this regard, viz. that, in breach of European Union law, the Minister did not have any regard to the particular illness of Mr Agha’s mother and how this impacted on dependence…

As is clear from Jia, at para. 37 (as touched upon in Chittajallu v. Minister for Justice & Equality [2019] IEHC 521, at para. 4): “in order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess, whether, having regard to their financial and social conditions, they are not in a position to support themselves” [Emphasis added]. No such analysis was not undertaken here…”

It is clear from the above High Court decisions that a failure to take into account an Applicant’s social dependency on the EU citizen constitutes a breach of EU law. An analysis of the Applicant’s financial dependency alone will not be sufficient.

In both of the above cases, the Court ruled that the initial refusal was unlawful and remitted the matter to the Minister for fresh consideration.

This is a positive development for family members who are dependent on their EU Citizen family member for reasons other than, or in addition to, their financial circumstances.

Social dependency may arise from factors such as an Applicant’s medical circumstances or the nature of the social and emotional relationship between the Applicant and the EU Citizen.

If you or a family member wish to discuss an EU Treaty Rights application, please do not hesitate to contact our office.

The full judgments will be published shortly on the website of the courts, which can be found here.

COURT OF APPEAL JUDGMENT ON MEMBERSHIP OF THE SAME HOUSEHOLD IN EU TREATY RIGHTS CASES

On the 19th December 2019, the Court of Appeal delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality, in which Berkeley Solicitors acted for the Applicants.

The decision is significant for family members of EU citizens who have applications, or are considering making applications, for visas or residence cards based on the fact that they are members of the same household of an EU citizen family member under Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, (‘the Citizens Directive’).

The case concerned the refusal of an EU Fam residence card to the cousin of a British citizen, who had lived as the member of his household for many years in the United Kingdom prior to moving to Ireland.

The central issue before the Court of Appeal was the meaning of the term ‘household of the Union Citizen’  for the purposes of the Citizens’ Directive.

The Applicants argued that the household of the Union citizen consists of those persons who are family members and who reside in the same dwelling as the Union citizen. The Respondent argued that what is to be established is that the household concerned is that of the Union citizen, and that the centrality of the Union citizen in the family living arrangements is to be assessed.

The Applicants also put forward submissions regarding other language versions of the term ‘membership of the same household’ and found that there was no ‘head of the household’  test in those versions.

Ms Justice Baker ultimately upheld the decision of the High Court in finding that the criterion of ‘membership of the same household’ is not simply established where family members live under the same roof. Rather, members of the household of the Union citizen must be those persons who are some way central to the family life of the Union citizen.

The Court held:

“68. It may be more useful to consider the notion of household by reference to what it is not. Persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them.

69. It is not a test of with whom the Union citizen would choose to live, but rather, with whom he or she expects to be permitted or facilitated to live in order that his or her family unit would continue in being, and the loss of whom in the family unit is a material factor that might impede the Union citizen choosing to or being able to exercise free movement rights. That second element, it seems to me, properly reflects the core principle intended to be protected by the Citizens Directive.

70. It may be dangerous to give an example, and I do so by way of illustration only. A family member who had resided in the same house as a Union citizen for many years before free movement rights were exercised might well have become a member of the family with whom there has developed a degree of emotional closeness such that the person is integral to the family life of the Union citizen. That person could be a member of a household because the living arrangements display connecting factors that might, in an individual case, be termed a “household”. If the rights of free movement of a Union citizen within the group are likely to be impaired by the fact of that living arrangement, whether for reasons of the moral duty owed to the other members of the group or otherwise, then the rights under the Citizens Directive fall for consideration.”

The Court found that the EU Citizen’s Free Movement rights where not impeded or restricted by refusing a right of residence to his family member in this case.

The full judgment has been published on the website of the courts and can be found here.

RECENT CJEU JUDGEMENT FINDS THAT INCOME OBTAINED FROM UNLAWFUL EMPLOYMENT CAN BE USED AS PROOF OF SUFFICIENT RESOURCES

The Court of Justice of the European Union (CJEU) has recently ruled in Bajratari v SSHD (Case 93/18) that there are no requirements with regards to the source of income in providing evidence of self-sufficiency. It further held that a child is to be considered self-sufficient and not to be a burden on social welfare system of a host State where they are supported by the unlawful employment earnings of a third country national parent.

The case specifically concerned Article 7(1)(b) of Directive 2004/38 which provides two criterion for a Union citizen’s right of residence in a host Member State for a period of over three months.

(i) having sufficient resources for themselves and their family members not to become a burden on the host state’s social assistance system;

(ii) comprehensive medical insurance.

The decision involved the right of an Albanian Applicant, Ms Bajratari, to reside in Northern Ireland in the capacity of the primary carer of two minor Union citizens, who had obtained certificates of Irish nationality. Ms Bajratari’s husband, and father of the minor EU citizens, had been working in Ireland without a residence card or permit, the former which expired in 2014. This income is the only available financial resources to the family.

After the birth of the couple’s first child in September 2013, Ms Bajratari applied for recognition of a derived right of residence under the Directive.

The Court of Appeal in Northern Ireland referenced Alokpa (Case C-86/12) where the CJEU had previously held in paragraph 27:

“the expression ‘have’ sufficient resources in a provision similar to Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that it suffices that such resources are available to the Union citizens and that that provision lays down no requirement whatsoever as to their origin…”.

However, the decision did not specifically address the issue of unlawful employment and therefore the application was rejected.

The Court of Appeal in Northern Ireland referred two main questions to the CJEU:

  1. Can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources under Article 7(1)(b) of [Directive 2004/38/EC]?
  2. If “yes”, can Article 7(1)(b) [of the Directive] be satisfied where the employment is deemed precarious solely by reason of its unlawful character? [para 17]

The CJEU affirmed that Ms Bajratari’s right to reside was subject to limitations including the condition of having sufficient resources not to become a burden on the social welfare system. [para 28 – 29]

However, the court held that this condition did not contain a requirement as to where these financial resources originated from and therefore does not exclude income derived from the third country national parent’s unlawful employment.

The court confirmed that in such situations there is a greater risk that the minor Union citizen will be dependent on the social assistance system, given the greater risk at losing this income. Nevertheless, the Directive contains provisions allowing the State to act in such situations to protect the social assistance system. Therefore, the CJEU found that excluding unlawful employment would lead to:

Para 42: “a further requirement relating to the origin of the resources provided by that parent, which would constitute a disproportionate interference with the exercise of the Union citizen minor’s fundamental rights of free movement and of residence under Article 21 TFEU, in so far as that requirement is not necessary for the achievement of the objective pursued”.

CJEU noted that Mr Bajratari had paid tax and social security contributions on his income even after his residence card expired.

Excluding unlawful employment income from meeting the social assistance requirement, in a situation where the family have been able to provide for themselves for ten years without relying on the social welfare system goes manifestly “beyond what is necessary in order to protect the public finances of that member state”. [para 46]

The court rejected the UK government’s argument that a restriction of the free movement rights of the couple’s children was justified on the grounds of public policy. [para 52]

In conclusion, Mr Bajratari’s employment was held to be satisfactory under the concept of sufficient resources despite it being unlawful. This is a very positive decision from the CJEU, one which highlights the interdependence between the right to work and the right to reside.

A third country national parent must have a right of residence to obtain a work permit. Yet often require the right to work in order for their EU citizen child to fulfil the conditions under the Directive to reside in the host state. Therefore, the exclusion of income derived from unlawful employment would inherently reduce the family’s chance of acquiring the right to reside in the host state.

The CJEU has underscored and promoted the rights of Union citizens in this decision.

The judgement can be read in full here

 

 

IMPORTANT JUDGEMENT RELATING TO PERMITTED FAMILY MEMBERS IN EU TREATY RIGHTS APPLICATIONS: AF AND AF V THE MINISTER FOR JUSTICE AND EQUALITY

Berkeley Solicitors is happy to announce that our clients have obtained a successful decision from the High Court in relation to permitted family members in EU Treaty Rights applications pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. Mr Justice Barrett delivered this important judgement on the 26th September 2019.

We believe that this judgment will have an extremely positive impact on permitted family members for such applications.

The case concerned two applicant brothers- ‘Brother A’, a British citizen resident in Ireland for employment purposes and ‘Brother B’, the dependent of Brother A and a Pakistani citizen living in Ireland as a student since 2014.

The High Court found that the Minister’s refusal of the application for an EU residence card for the dependent brother was unreasonable and to some extent irrational, and therefore quashed the Minister’s decision.

The court accepted the applicant’s arguments that Brother B’s country of previous residence is Ireland, contrary to the Minister’s argument that the country of previous residence was Pakistan.

Relying on Rahman, the court reaffirmed that the phrase “in the country from which the person has come” in relation to permitted family members, as appears in both the Directive and the 2015 Regulations, refers to the State he was resident in when he applied to join the Union citizen.

At paragraphs 7 and 8, the court states that:

Although visa applications are typically made outside Ireland, in this instance, Brother B had permission in his own right to reside in Ireland as a student on the date the application was made and therefore the Minister was mistaken in maintaining that Pakistan was the country Brother B came from.

The court further clarified that even in the case of (incorrectly) considering Pakistan as the country from which Brother B had come, Brother A’s actions with respect to housing and financing Brother A’s education in Ireland would remain relevant insofar he was consistently supporting by his brother to the point of dependency.

Mr Justice Barrett specifically addressed the nature of evidence provided in support of EU Treaty Rights Applications referring to the statements made by the applicants. He reaffirmed that when applicants make/sign the declaration for the completion of the EU1A form, certain weight is afforded to the evidence provided in and with the application.

Mr Justice Barrett took a fair and reasonable approach to the provision of documents maintaining that very few people can produce/receive or retain documentation with regards to every aspect of their lives, even in the case of the most important aspects of one’s life.

The Judge remarked that in reality there is a limit to what one applicant can produce in terms of documents.

Mr Justice Barrett went on to provide a summary of the concept for dependency confirming that it means:

15. “that members of the family of a community national… need the material support of that Community national… in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national”.

Referencing Kuhn and Ors, Mr Justice Barrett echoed that material support includes financial contribution but does not require that the entirety of the cost of essential needs be covered by person providing support.

This judgement advocates, in light of Article 3(2) of the Citizen’s Right Directive, for a relatively generous test as to what constitutes dependency.

A point that the court felt important to note, was that in a situation where material support is not provided directly to the dependent but to others, the dependent is not precluded from being described as such because dependent relationships can include both direct dependency and/or vicarious dependency.

Specifically addressing the issue of dependency in Pakistan, in paragraph 23, Mr Justice Barrett found the Minister’s assertion that the applicants had not provided evidence that without the small cash transfers, Brother B would not have been able to support himself in Pakistan was unreasonable.

Highlighting that Brother B was unemployed in Pakistan and therefore clearly dependent on someone for his income, the High Court was unable to see in this regard:

23(ii). “how Brother B could prove that if he was not in the position that he found himself to be in, he would still not have been able to support himself; how could he possible demonstrate that?”.

In conclusion, the court granted an order of certiorari which means that the Minister’s refusal of the application as a result of the court’s findings is withdrawn and that the application be reconsidered by the minister.

We believe that this judgement will have a positive effect for other applicants who are permitted family members and awaiting the outcome of their EU residence card applications.

The full judgement will be posted here shortly.

 

 

PERVAIS V MINISTER FOR JUSTICE AND EQUALITY [2019] IEHC 403 AND THE DEFINITION OF A ‘DURABLE RELATIONSHIP’

The High Court has delivered judgement in a case that may have a significant impact on applications from the partners of EU citizens under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015,

Partners can fall within the category of “permitted family member”.

In the Directive beneficiaries in this category are described in Article 3(2) as the partner “with whom the Union citizen has a durable relationship, duly attested”.

This definition can be found at reg.5(1)(b) of the Regulations.

In this case the Court asked the question: What is a “durable relationship”?

The Court notes:
The phrase is not defined in the Citizens’ Rights Directive, most likely so as to allow the various member states to proceed by reference to concepts of relationships/durability that suit their respective mores and traditions.

The Court was critical that the Minister has not tried to define or elaborate on this definition by way of Ministerial guidance. The Court found that an untenable situation has arisen whereby no-one (applicants, officials or indeed the court) quite knows what a “durable relationship” is.

It has emerged in the proceedings that a “durable relationship”, as conceived by the Minister involves a ‘sort of’ two-year benchmark, however a lower timeframe can be applied if that is considered to be merited on the evidence in any one case… though quite when the evidence will be (or is) considered to justify the application of a lower timeframe and how a particular lower timeframe is settled upon is entirely unclear.

The Judge went through the EU1A application form and guidance note in some detail (this is the application form on which a permitted family member makes an application for an EU residence card). The Court noted that as the concept of “durable relationship” is not defined, asking someone to provide “Evidence of a durable relationship” is largely, if not completely, meaningless.

The Court also held that the Minister had allowed a confusion to arise between the concept of a durable and attested relationship and the conception of “cohabitation”.

The Court found in this respect:
“… it seems to the court that the concept of “cohabitation” has skewed the Minister’s approach to such applications as are made under reg.5, not least in the suggestion that “tenancy agreements, utility bills” would be suitable evidence of “cohabitation”. Perhaps they would, but reg.5(1)(a) refers to a “durable relationship”, not a relationship of cohabitation.”

The Court outlined a number of scenarios where a durable and attested relationship might exist both with or without cohabitation and made a number of remarks as to the approach of the Minister to require evidence and documents of cohabitation.

The Court answered a number of questions in concluding its judgment, most notably:

Q2. (i) Has Directive 2004/38/EU been adequately transposed into domestic law by the respondents?
(ii) Have the respondents infringed the principle of effectiveness by failing to provide any legislative definition of the concept of “durable relationship duly attested” or any legislative framework/guidance for the test to be applied and the proofs required?

No to (i).

Yes to (ii), save that the court considers that a definition could also be provided in non-legislative guidance (which to this time this has not occurred). The manner of transposition yields the various legal issues described herein and the principle of effectiveness has been breached.

It will be interesting to see how the Minister deals with the Court’s judgement in this matter. It appears that in the Court’s view it would be open to the Minister to deal with this issue by way of statute/ amendment to the regulations or alternatively by way of Ministerial guidelines.

We hope that in light of this judgement the Minister goes on to provide a clear definition of a “durable relationship, duly attested” so that there is more clarity for EU citizens and their partners as to their eligibility for an EU fam residence card.

The full judgment can be read here.