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OIREACHTAS COMMITTEE REPORT ON MIGRANT FISHERMEN

The exploitation of undocumented workers in the Irish finish industry was the subject of research carried out by The Migrant Rights Centre which found that two thirds of migrant fishermen work more than 100 hours a week, and receive an average pay of €2.82 an hour, and often furthermore suffer physical and verbal abuse.

The Migrant Rights Centre Ireland has worked with the migrant fishermen employed on Irish boats to advocate and lobby on their behalf.  This work has resulted in the publication of the ‘Report on the situation of non-EEA crew in the Irish Fishing Fleet under the Atypical Worker Permission Scheme’ by the Joint Committee on Business, Enterprise and Innovation.

The Committee has made it very clear that the abuse and exploitation can go on no more.

The Committee made a number of recommendations to address this ongoing exploitation in the Irish fishing industry. One of the recommendations is that all undocumented non-EEA nationals in the Irish finishing industry should have their status regularised within six months.

Eden McGinley, MCRI Director, stated “We welcome this report and its recommendations many of which match our own assessment of the issue. In particular we welcome the recommendation that a worker not be tied to one employer – it is essential that workers be able to leave exploitative employers.”

Eden McGinley also stated that “The committee also recommended the vital provision of extra resources to the Workplace Relations Commission (WRC) to continue inspections, highlighting the need for access to interpreters, and suggested that one Minister and Government department be given overall responsibility in this area. MRCI calls on Minister Heather Humphreys and the Department of Business, Enterprise and Innovation to take up this role.”

At Berkeley Solicitors we have acted for a number of clients who have experienced such exploitation working in the fishing industry. We would also call on the government to implement these important changes as recommended by the Committee to protect this very vulnerable and exploited group. We commend the MCRI for the good work they have done on behalf of the undocumented fishermen.

Berkeley Solicitors

REGISTRATION WITH THE IRISH NATURALISATION AND IMMIGRATION SERVICE

If you are not an-EU/EEA and non-Swiss citizen and you wish to stay in Ireland for a period longer than 90 days you must apply for immigration permission and if successful register. For those who do not know there are a variety of categories under which immigration permission can be requested. The most common of which being to study, to work or to live with your spouse, partner, child or family member.

LUXIMON CASE: SUPREME COURT’S JUDGEMENT

Berkeley Solicitors is happy to announce that the Irish Supreme Court has delivered its judgment in the cases of Luximon v Minister for Justice and Equality and Balchand v Minister for Justice and Equality.

These proceedings where both appealed from the Court of Appeal by the Minister for Justice and Equality.

The outcome of this case is one that potentially affects a large number of our clients, and we note that this judgement is a positive judgement for many non-EEA persons resident in Ireland, who came to the State before 2011 as students. We submit that the case has helpfully clarified the Minsiter’s obligations when assessing applications under Section 4(7) of the Immigration Act 2004.

We have previously discussed the Court of Appeal case of Luximon and Amicus Curiae in the Court of Appeal case in other posts on our Immigration Blog.

The History of the cases:

The cases of Luximon and Bachland concerned Mauritian nationals who first came to the State as students,11 years ago. Both applicants went on to have children after a number of years and viewed Ireland as their place of permanent residence. Through work, education and familial and social connections built over a decade these families had become well-established in the State.

In 2011 a new scheme was introduced entitled “O, registered in Ireland before 1st January 2011”. Under this scheme explicit time limits were set regarding the length of time students could remain in the State.

Between 2012 and 2013 both applicants made applications under Section 4 (7) of the Immigration Act 2004 which states as follows:

“A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefore by the non-national concerned.”

Following the refusal of their Section 4(7) application, Danye Luximon and her daughter challenged this decision in the High Court.

The applicants, in their High Court challenge, contended that the statutory discretion under Section 4 of the 2004 Act must be exercised in accordance with the provisions of Section 4 itself, the Constitution, and the European Convention on Human Rights.

The High Court quashed the minister’s decision, holding that the Minister had an obligation to consider family and private life rights when they arose in the context of a Change of Status application and that the Minister failed to comply with the principles of natural and constitutional justice, and basic fairness of procedures by failing to make available the criteria under which she considered such applications. Budd J allowed an appeal by the Respondent on the basis that it was in the public interest.

The applicant family in Bachland was unsuccessful in challenging the refusal of their Section 4(7) application in the High Court, with the High Court finding on this occasion that the applicant’s residence was “precarious” in nature.

Both cases where appealed to the Court of Appeal.

The Court of Appeal found for the applicants in both cases and affirmed the decision in the High Court of Budd J.

The Court of Appeal judgement was appealed to the Supreme Court by the Respondent (The Minister for Justice and Equality).

Supreme Court Judgement

by Mr Justice Mac Menamin, it was held that the Minister for Justice must take account of an individual’s rights to private and family life under Article 8 of the ECHR in assessing applications under section 4(7) of the Immigration Act 2004.

Each case should be assessed on the particular facts of the case at hand. Any decision made without taking the individual’s private life into consideration is “unlawful”.

The Judge disagreed with the finding of the High Court in the Bachland case, that the applicant’s immigration status was “precarious”, stating that this is typically used in jurisprudence to refer to those whose status is “attenuated” or weak.

The Judge on the contrary found that the applicants are “lawful, long-duration residents”.

Notably the judgement goes on to find that even if a person’s position was indeed “precarious” that this would not absolve the Minister of observing their duty of fairness.

The Judge differentiated the facts of these case from cases concerning short-term visitors, those in temporary employment, asylum seekers and those without established links to the state.

The Judge also stressed that this judgement only required the Minister for Justice to give “consideration” to the the right to private life.

Justice Mac Menamin found that the way in which the Minister for Justice had refused the Section 4(7) applications of the applicants to be unlawful.

Justice Mac Menamin stressed in their judgement that the judgement was based entirely on the facts at hand, and that this judgement would not apply to all cases.

Justice Mac Menamin in particular emphasises the fact that the applicants came to the State lawfully and were long term established residents and had at all times renewed or attempted to renew their permission to remain.

Reaction

Reactions to the Supreme Court’s judgement have generally been very positive. We refer to the statement of Ms Jane O’Connell, Legal Officer in MRCI:

“The Court emphasised the need for fairness and transparency in Ireland’s immigration policies. This does not mean regularisation for everyone or even for people who meet certain criteria, but it may at last mean a move towards a more humane immigration system in Ireland. We commend both families involved – it takes great bravery to go up against the State, particularly as a migrant.”

We also note the statement of the Department of Justice and Equality made to TheJournal.ie.

“The Supreme Court judgement in this complex case is only recently to hand. The Department of Justice and Equality will require some time to examine and assess its implications in greater detail in conjunction with the Office of the Attorney General.” 

It remains to be seen how this judgement will affect the large number of persons whose applications under Section 4(7) have been pending, awaiting this judgement.

It appears to us to be a positive and helpful judgement from the Supreme Court and we hope that it will result in the issuance of positive decisions in the near future.

We wish to congratulate the families involved in these important cases and their legal teams.

Once the practical effect of this judgement becomes clear we will update The Immigration Blog.

IRELAND COMMENCES RATIFICATION PROCESS OF THE UN CONVENTION ON DISABILITY RIGHTS

On the 7th March 2018, the Dail has commenced the process of ratification of the UN Convention of the Rights of Persons with Disabilities 2006, following the enactment of the Disability (Miscellaneous Provisions) Bill 2016.
The Tánaiste and Minister for Foreign Affairs Simon Coveney will be signing the Instrument of Ratification, which will come into force 30 days after it is received by the UN.
Ireland will be the last member of the EU to ratify the 2006 Convention, despite having signed the framework in 2007.
Once ratification has been completed, the Convention of the Rights of Persons with Disabilities will then have legal effect in the State and give specific legal rights to individuals with disabilities.
The Convention protects equal treatment for all people with disabilities with respect to human rights and fundamental freedoms. It has eight guiding principles: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women, and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
In respect of immigration cases, this is a very relevant development. It is common that visas, residence permissions or family reunification applications are granted or refused on the basis of a person’s financial and employment circumstances. This has put some persons with disabilities at a specific disadvantage when they do not have the capacity to earn a living, and therefore would potentially be excluded from a particular visa or residence permission, or perhaps never benefit from the option of family reunification
This affects non EEA nationals in terms of applications for visas and residence permissions, and also Irish citizens and EEA citizens who are applying for family reunification where the applications have specific financial thresholds.
In the case of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015, persons with disabilities are not included as a category of persons who are deemed to be exercising EU Treaty Rights. Both the Directive and Regulations are silent on the matter, and individual cases fall to be determined at the discretion of the Minister on a case by case basis.
We have made representations to the Minister on behalf of some clients with disabilities arguing that their disability cannot lawfully be relied on as a ground to deny them a visa, residence permission or family reunification permission when this would discriminate them against a person without such a disability.
The ratification of the Convention of the Rights of Persons with Disabilities is hugely significant as the Minster for Justice and Equality is now obliged to implement and protect the rights of persons with disabilities in all immigration cases, and such persons can rely on the Convention to enforce their rights in the determination of their immigration cases, and before the courts if necessary.

Berkeley Solicitors