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SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

HIGH COURT DECISION ON REFUSAL OF EMPLOYMENT PERMIT FOR TRAINEE ACCOUNTANT

On 25th March 2020, Mr Justice Heslin delivered his judgment in Julia Olivera Rodriguez v The Minister for Business, Enterprise and Innovation.

This case concerned a Venezuelan national with a BSc. Degree in Public Accounting from Venezuela and a Certificate in Business Accounting which she obtained in Ireland through the Chartered Institute of Management Accountants in May 2018.

Ms Rodriguez’s application for an Employment Permit for the role of Trainee Accountant was refused by the Minister for Business, Enterprise and Innovation on the basis that the position of Trainee Accountant does not fall within the list of eligible categories of employment, as set out in the Employment Permits Regulations, 2017.

Ms Rodriguez challenged this decision in the High Court, arguing that the Minister had been incorrect in this finding and that the role of ‘Accountant’ should be interpreted to include those training for the position, as is the case in the UK.

Mr Justice Heslin in his decision stated:

“I am entirely satisfied that the 2017 Regulations cannot be interpreted in the manner in which the applicant contends. Doing so would involve this Court importing into the 2017 Regulations words which are simply not there and also ignoring the plain meaning of words which incontrovertibly appear in the 2017 Regulations.”

Mr Justice Heslin stated that the regulations very clearly set out employments of which there is a shortage and which are required for the proper functioning of the economy, including Accountants and Tax Consultants with particular specialisms and specified experience:

“Schedule 3 of the 2017 Regulations very clearly sets out those employments in respect of which there is a shortage in relation to “qualifications, experience or skills” required for the proper functioning of the economy and these include “Chartered and Certified Accountants” with particular specialisms, “Qualified Accountants” with particular experience and “Tax Consultants” with specified experience. As a matter of fact, the applicant falls into none of the categories specified in Schedule 3. For this Court to hold that she does, would be to do violence to the specific words used in Schedule 3 and would amount to this Court deciding, impermissibly, that someone who is unqualified comes within a category which explicitly addresses shortages in “qualifications”. This Court has no power to ignore the clear wording in Schedule 3 of the 2017 Regulations and to hold that shortages in the qualifications set out in Schedule 3 are met by unqualified persons.”

The court found that Ms Rodriguez does not fall within any of these categories and the decision to refuse her application for an Employment Permit was upheld.

The full text of the judgment can be found here.

If you would like more information on the application process for Employment Permits in Ireland, please do not hesitate to contact our office.

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.

2,000 PEOPLE FROM OVER 100 COUNTRIES CONFERRED WITH IRISH CITIZENSHIP

Congratulations to the almost 2,000 people who were conferred with Irish citizenship at ceremonies in Co. Kerry on Monday 9th December 2019.

We especially wish to congratulate a number of our clients who have recently received positive naturalisation decisions.

The new citizens are originally from 103 different countries, with over a quarter originating from Poland and the United Kingdom.

The ceremonies took place at the Gleneagle INEC in Killarney and were presided over by retired High Court judge. The Minister for Justice, Charlie Flanagan, and Minister of State for Equality, Immigration and Integration, David Stanton, were also in attendance.

Such ceremonies had been placed on hold following the High Court ruling in the Jones case in July 2019 that anyone applying for citizenship could not spend a day outside Ireland in the 12 months before applying.

Last month the Court of Appeal overturned this ruling, calling it “unduly rigid” and “unworkable”.

Minister Stanton described the ceremony as a major life event for the candidates, stating:

“Ultimately it’s about building a society where we all live in harmony while, at the same time, respecting our cultural and religious differences… The possibilities open to you in Ireland today are almost limitless. You are now beginning a new journey and a new phase in your life by becoming Irish citizens.”

Approximately 127,000 people have received Irish citizenship in the last 18 years. If you or a family member wish to discuss applying for naturalisation, please do not hesitate to contact our office.

 

 

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.