Tag Archive for: EUTR

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.

 

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

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.

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

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.

MINISTER RULED TO HAVE BEEN INCORRECTLY APPLYING EU LAW RELATING TO MEMBERSHIP OF THE SAME HOUSEHOLD

The High Court has issued a very important ruling in Shishu & anor -v- The Minister for Justice and Equality [2019] IEHC 566, which provides that the Minister for Justice has incorrectly applied EU law as it relates to the issue of residence cards to dependent family members and members of the same household of an EU citizen who is exercising his or her right to free movement in the State.

This case was brought by two brothers, the first, a naturalised British citizen living and working in Ireland and the second, a citizen of Bangladesh who claims that he lived with and as a dependant of his EU citizen brother in the UK before his brother moved to Ireland to live and work and he travelled to join him in the State.

An application had been made to the Minister for a residence card to be issued to the second brother on the basis that he is the dependant of and a member of the household of the first within the meaning of Regulation 5.1 of the European Communities (Free Movement of Persons) Regulations 2015, which states the following:

Permission for permitted family member to enter State

  1. (1) This paragraph applies to a person who—

(a) irrespective of his or her nationality, is a member of the family (other than a qualifying family member) of a Union citizen to whom paragraph (2) applies and who in the country from which the person has come—

(i) is a dependant of the Union citizen,

(ii) is a member of the household of the Union citizen, or

(iii) on the basis of serious health grounds strictly requires the personal care of the Union citizen, or

(b) is the partner with whom a Union citizen has a durable relationship, duly attested.

This application was refused in October 2018, with the Minister citing insufficient documentation evidencing the applicant’s dependency on his brother and his membership of the same household in the UK prior to the applicant’s travel to Ireland.

The Judge however found that in this case the documentary evidence provided as to membership of the same household in the initial application was ‘strikingly comprehensive’ stating:

(ii) the court has never previously seen an application of the type now in issue in which such an abundance of evidence was provided as to a particular point.

The Judge went on to state that the Minister in his finding that the applicant had provided insufficient evidence regarding other tenants living at their UK address, the relationship between the applicant and other tenants and as to the length of time the brothers had been living at this address, seemed to go beyond the requirements of the applicable legislation.

Mr Justice Barrett ruled that in the Minister’s decision determining that insufficient documentary evidence had been provided establishing dependency and membership of the same household, the Minister had erred in law in his application of the subsections of section 5 above and had acted unreasonably and/or in breach of EU law and/or the Regulations.

The Judge also ruled that the Minister had acted unreasonably and/or in breach of fair procedures by refusing the application without having outlined the type of documents his office required in evidence of the applicant’s dependency and membership of the same household. The judge criticised the lack of transparency inherent in the ‘closeted’ way in which the Minister is operating the application and decision-making process, one which he found leaves applicants ‘in the blind’ when it comes to trying to satisfy the Minister’s standards of proof.

In this regard the judgment states:

  1. (3) Did the Respondent act unreasonably and/or in breach of fair procedures in concluding that the second applicant had failed to submit satisfactory evidence that he was a dependent of the first applicant and/or a member of his household, without adopting procedures which would have enabled the second applicant to know what evidence he was required to adduce in order to establish same?

  2. Yes. The court does not consider that a approach by a decision-maker which amounts, in effect, to ‘Put in an application, I will not tell you even at the most general level, not even by way of non-binding guidance, what type of material I am looking for, but I will let you know if I do not see it’ is reasonable or entails fairness of procedure. It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind’ when making an application such as that at issue here.

On the issue of membership of the same household, the Judge highlighted that Ireland, as an EU member state, is obliged under Directive 2004/38/EC to facilitate the entry and lawful residence of members of the household of an EU Citizen exercising his or her right to free movement in the State.

Article 3 of Directive 2004/38/EC provides the following:

Beneficiaries

  1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
  2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The Judge on this point noted that the term ‘household’ is not defined in the 2004 Directive or the 2015 Regulations and that it is therefore required to be given its ordinary meaning in the English language and be applied uniformly by EU members states. The Judge however, in reference to an observation of the Court of Justice of the EU, goes on to state that within the context of Article 3.2 of the 2004 Directive it in fact seems that a wider meaning is attributed to the term ‘household’ than that of its ordinary English language meaning.

The Judge held that the Minister in his decision in this case seemed to interpret ‘household’ as referring to a single person/group regularly residing together in the same accommodation and sharing catering arrangements, and did not consider the term to apply to a single dwelling which may contain multiple households not sharing living spaces or catering arrangements.

The judgment states in this regard:

(vi) even if one has regard solely to the English language meaning of “household”, that term is typically understood to embrace [a] a single person or group of people who regularly reside together in the same accommodation and who share the same catering arrangements; However, [b] it is of course possible for a single dwelling to contain multiple households if meals or living spaces are not shared. It seems to the court, with respect, that the Minister in his reasoning has had regard solely to conception [a] of what comprises a household and no regard to conception [b].

The Judge cancelled the Minister’s refusal of the application as a result of the court’s findings and directed that the application be reconsidered by the Minister.

The full judgment can be read here.