Tag Archive for: immigration

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

Ms Justice Phelan of the High Court has delivered judgement in the case of AKS v the Minister for Justice [2023] IEHC 1, which addresses the impact of the Supreme Court judgement U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25.

The facts in the AKS case arise from the decision of the Minister to revoke a permanent residence card to the parent of an Irish citizen child on the basis of an allegation of fraud. The decision of the Minister was to find that the EU Fam Residence card was revoked in its entirety on the basis of fraudulent conduct. It was submitted by the Applicants in this case that the 2015 Regulations do not permit retrospective revocation and furthermore that a revocation of an EU Fam residence card to the parent of an Irish citizen child, does not impact that child’s right to Irish citizenship. The Applicants also argued that the review process under the 2015 Regulations does not sufficiently meet the procedural safeguards and protections required by Directive 2004/38/EC.

In following the Supreme Court judgement UM, which arose in the context of revocation of refugee status of a parent rather than an EU Fam residence card, Ms Justice Phelan held that “Neither the 1956 Act nor any other law identified to me or by me provides for the denationalisation of a citizen by birth.”

Judge Phelan further confirmed that The 2015 Regulations make no provision for the acquisition or loss of citizenship and that the 2015 Regulations, properly construed, do not provide for a power to retrospectively nullify vested citizenship rights of a non-party child,  

Judge Phelan held:

Neither Regulation 27 or 28 of the 2015 Regulations provide in express terms for a retrospective nullification of permissions which have issued on foot of false or misleading information or by reason of a marriage of convenience. Indeed the provisions of Regulations 27 and 28 are couched in the present tense both as regards a permission which “is being relied upon” and a marriage which “is” a marriage of convenience (as opposed to a post-divorce situation where reference would be made to the marriage in the past tense). It is also clear that the Regulations do not mandate the revocation of a permission that “is being relied” upon but they empower revocation by providing for a discretion (“may”) to revoke. This is in contrast with the language used in the 2006 Regulations where revocation was mandatory.

In contrasting the facts of UM and AKS, Ms Phelan concluded that in both contexts the relevant legislation did not envisage retrospective revocation where derived rights are impacted:

It seems to me that the starting point should be that the principle of prospective operation of legislation and legislative provisions should apply when interpreting the provisions of the 2015 Regulations and that it is appropriate to approach those Regulations on the basis that they are not to be presumed to permit retrospective alteration of the legal nature of past conduct and events affecting an acquired status unless clear words are used, mindful of course that the 2015 Regulations, as transposing Regulations, also require to be interpreted in a manner which gives effect to the Directive. It is clear from UM that the concept of retrospective nullification affecting acquired status while not outlawed in theory is considered by the Supreme Court to be generally unsuited to the public law context, and particularly unsuited to addressing historic immigration status and derived rights and requires a clear legal basis. 

In relation to the Minister’s power to revoke the residence permission of the applicant, with the impact of the revocation only impacting his own position, and not the position of his minor child, the Court concluded:

Contrary to the First Respondent’s asserted understanding of her powers, it does not follow from a finding of fraud or marriage of convenience that a residence permission will be automatically revoked. While it is an open question as to whether the First Respondent had been vested with a power to retrospectively revoke the Second Applicant’s EU residence rights, it is nonetheless clear that any power was discretionary and therefore fell to be exercised in a proportionate manner having due regard to affected rights and interests.

If you have been impacted by these important issues, Please contact Berkeley Solicitors for advices.

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

On the 3rd of January, 2023, the Department of Justice announced that all those currently holding valid Stamp 1 permission to work as a non-EEA crew member in the Irish Fishing Fleet on or after 1st January 2023 will be granted Stamp 4 immigration permission.

 

This permission will be granted on an exceptional basis due to the closure of new applications for the Atypical Working Scheme (AWS) for such non-EEA crew. The AWS Scheme closed following an agreement to transfer responsibility for work permissions in this sector to the Employment Permit system. The granting of Stamp 4 permissions has been announced to provide certainty and security to employees and employers in this sector during this transitional period.

 

Stamp 4 immigration permission will be granted to any individual non-EEA crew member who currently holds a valid IRP card expiring on or after 1st January 2023. Any individuals who hold a letter of permission under the AWS Scheme issued on or after the 3rd of October 2022, will also be eligible for Stamp 4, as such letters are valid for 90 days from the date of issue.

 

Eligible individuals are advised to make an appointment as soon as possible at their local GNIB Office to be granted this permission. Those attending an appointment should bring their current, in-date passport, their most recent valid in-date letter of permission under the AWS Scheme, and their current IRP card (if applicable).

 

Any crew member whose AWS permission expired on or before the 31st of December 2022, and who has not renewed their permission, will not be eligible for the granting of a Stamp 4 permission. We find this to be a very disappointing decision as many persons who have worked for many years under the AWS who may have fallen out of the system through no fault of their own are not included in this policy and will be required to continue to  make their own individual cases to the Minister for Justice for Stamp 4 permission.

 

The full announcement from the Department of Justice can be found here:

https://www.irishimmigration.ie/sea-fishers-atypical-working-scheme-update/

 

Information regarding the closure of the Atypical Working Scheme can be found here:

 

https://www.irishimmigration.ie/closure-of-the-atypical-scheme-aws-for-non-eea-crew-in-the-irish-fishing-fleet/

 

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.

ISD ANNOUNCE INITIATIVE TO FACILITATE NON-EEA NATIONALS WITH PENDING RENEWAL APPLICATIONS TO TRAVEL DURING CHRISTMAS

ISD ANNOUNCE INITIATIVE TO FACILITATE NON-EEA NATIONALS WITH PENDING RENEWAL APPLICATIONS TO TRAVEL DURING CHRISTMAS

Immigration Service Delivery has recently announced an initiative to facilitate non-EEA nationals travelling during the Christmas period. The Registration Office is currently experiencing delays of 5-6 weeks in processing renewals of IRP cards. ISD has stated that after such renewals are completed, it may take a further two weeks to receive a new IRP card in the post.

 

Due to these delays, the Minister is issuing a Travel Confirmation Notice, requesting carriers to allow individuals to travel on their recently expired IRP where a renewal application for their IRP was submitted before the expiry of their current permission. This initiative has been introduced to facilitate nationals who are required to renew their current permission and who wish to travel internationally during Christmas.

 

Non-EEA nationals may use their current recently expired IRP card to enable them to travel from 9th December 2022 to 31st January 2023, provided an application for renewal was submitted in advance of the expiry date of their IRP card.

 

Those wishing to avail of the initiative must download and print the notice published by ISD, and present it along with their expired IRP card and proof of their renewal application to immigration authorities and airlines if requested to do so.

 

The ISD notice can be found here:

 

https://www.irishimmigration.ie/isd-announces-initiative-to-facilitate-customers-travelling-at-christmas/

 

Further information on this initiative can be found here:

 

https://www.irishimmigration.ie/wp-content/uploads/2022/12/FAQs-Travel-Arrangement-Form-09-December-2022-to-31-January-2023.pdf

 

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.

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

RECENT HIGH COURT JUDGEMENTS RELATING TO EU RESIDENCE CARDS

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of K v Minister for Justice [2022] IEHC 582. The case concerned a review of the decision to revoke an EU Residence Card which had been previously granted to the spouse of a Latvian citizen. The submissions put forward by the applicant were rejected by the Minister, who found firstly that the applicant’s marriage to an EU citizen was one of convenience, and secondly that the applicant had submitted false and misleading documentation in support of his application for a residence card.

EXCLUSION OF UKRAINIAN CITIZENS AND HOLDERS OF TEMPORARY PROTECTION FROM REGISTER OF NON-NATIONALS

It has now been five months since the Council Implementing Decision (EU) 2022/382 of the 4th March 2022 and since the Department of Justice commenced granting Temporary Protection for persons fleeing the conflict in Ukraine in accordance with Section 60 of International Protection Act of 2015.

Currently, the Minister still has yet to open the Register of Non Nationals to Ukrainians and holders of temporary protection.

With the exception of one client of Berkeley Solicitors who was successfully registered on stamp 4 permission on the basis that they urgently needed to leave the State, we are not aware of any other holders of temporary protection who have been registered.

In lieu of registering the immigration permissions of the relevant parties, the Minister granted such persons letters confirming their temporary protection along with a right to work, PPS number and other supports.

In response to a Parliamentary Question dated 8th May 2022, Minister McEntee stated

As of 8 May 2022, a total of 28,531 people had arrived in Ireland from Ukraine and my Department had issued approximately 28,002 temporary protection permission letters.
In relation to the registration of their immigration permission, people who have arrived from Ukraine will have been given a 90 day immigration permission, as standard on arrival, by an immigration officer. Arrangements for the registration of the permission and the issuance of an Irish Residence Permit (IRP) card will be finalised by my Department as soon as possible. All necessary steps will be taken to ensure that the process is as simple and stress-free as possible. The practical arrangements will be communicated at the appropriate time.

According to the FAQ page of Department of Justice website updated on the 8th June 2022, the Minister is taking steps to register the immigration permissions of Ukrainians and holders of temporary protection:

“The Department of Justice is putting in place the arrangements for the registration of the permission and information will be provided to you at the appropriate time. The department is taking all necessary steps to ensure that the registration process will be as simple and stress-free as possible for you.”

While we welcome the provision of residence permission and other rights to persons who have fled Ukraine, the failure of the Irish authorities to register holders of temporary protection and to provide them with IRP cards is not satisfactory. It garners a number of negative consequences specifically pertaining to visa required nationals who hold temporary protection and are unable to leave the State as they cannot obtain a re entry visa.

We submit that Minister for Justice is required to facilitate the registration of all non nationals in Ireland who have been issued with permission to reside pursuant to Section 9 of the Immigration Act 2004, and this includes the holders of temporary protection.  Section 9 also places an obligation on all non nationals with permission to reside to register.

It is our position that the Minister of Justice is currently failing in her duties to Ukrainians and holders of temporary protection in not facilitating them to register.

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

JUDGMENT ON FAMILY REUNIFICATION OF ADOPTED CHILDREN UNDER SECTION 56

On 22nd July 2022, Ms. Justice Donnelly of the Civil Court of Appeal delivered judgment in the case of H.A. v. The Minister for Justice. The Minister for Justice appealed to the Court of Appeal following the Judgment in favour of the applicant in the High Court.

H.A. is a national of Somalia who was granted refugee status in the State by the Minister on 9th July 2019. On 11th June 2020, H.A. submitted a request for her husband, niece and nephew to join her in the State on the ground of family reunification under section 56 of the International Protection Act. H.A.’s request was granted for her husband and rejected for her niece and nephew.

H.A.’s niece and nephew, ‘X’ and ‘Y’, are cousins. X and Y are orphans after both children’s parents died during fighting in Somalia. On 11th November 2019 a Somali court issued H.A. a “Declaration of Responsibility” in respect of X and Y, making H.A. the legal guardian of the children. When H.A. applied for family reunification, she classified X and Y as her ‘non-biological children’ and included the Declaration of Responsibility among the supplemental documents.

H.A.’s letter of request also referenced the then-recent judgment in X v. Minister for Justice and Equality (2019), in which Mr. Justice Barrett J. held that there is a “wide diversity of family structures” and that the definition of a “child” can extend beyond that of biological and adopted. In a judgment delivered on 7th June 2020, two days before H.A. submitted her application for family reunification, the Supreme Court overturned Mr. Justice Barrett’s judgment, holding that the definition of a child, for the purposes of section 56 of the International Protection Act 2015, is confined to a biological or adopted child only.

H.A. applied for judicial review on the decision, stating that she believed the Declaration of Responsibility was not adequately considered and for failure to provide reasons for the decision. H.A. argued that a “refugee-sensitive” approach to the concept of adoption should be taken in this case, considering the family’s situation and the differences in the interpretation of adoption across different cultures.

Mr. Justice Ferriter J. of the High Court agreed that the Declaration of Responsibility was a vital part of H.A.’s application for family reunification. He held that the decision-maker had erred by not referencing or engaging with the Declaration of Responsibility.” Mr. Justice Ferriter declined to rule on whether X and Y would fall under the restricted definition of “child” according to section 56 of the International Protection Act (2015) and conceded that H.A. may have difficulty proving that X and Y are her children according to this limited definition. Mr. Justice Ferriter further stated that H.A. should be given the opportunity to make that argument.

The Minister submitted that because Somalia is not a Hague Convention country, there is no bilateral agreement even if the Declaration of Responsibility translates to adoption in Somali culture. H.A. submitted that the key issue was rather the law of the country of origin, because “the Declaration of Responsibility is equivalent in large part to a foreign adoption although it could never be recognized as such under the Hague Convention.”

Ms. Justice Donnelly’s ultimate findings are that the High Court was correct in finding that the Declaration of Responsibility was not properly considered by the Minister and the Declaration was vital to determining whether X and Y are non-biological children of the respondent.

Ms. Justice Donnelly further found that the Minister’s assertion that the trial judge incorrectly granted certiorari on the grounds that H.A.’s case was “bound to fail” must be rejected.

Ms. Justice Donnelly states that “the respondent’s case has reached the level of arguability that is required before a court should decline the invitation to refuse to grant certiorari on the ground that the subsequent remittal would be a futile exercise.”

We submit that the Supreme Court decision in the X case has clarified that a “child” within the meaning of Section 56 is limited to biological and adopted children and this position was followed by the Court of Appeal in this case.

However, we submit that the precise meaning of an “adopted child” is a matter which is still to be tested before the Courts, the Court in this case noted:

.An important consideration is that while X v. Minister for Justice and Equality held that the child of a sponsor meant solely the biological or the adopted child of the sponsor, the Supreme Court was not asked to, and did not consider, the precise meaning of “[a]dopted child” as set out in s. 18(d) of the Interpretation Act. That point did not arise in X and, as is frequently said, a point not raised is a point not decided.

UPDATE REGARDING ELIGIBLE SPOUSES AND PARTNERS OF GENERAL EMPLOYMENT PERMIT AND INTRA-COMPANY TRANSFEREE IRISH EMPLOYMENT PERMIT HOLDERS

EXCLUSION OF NON-EEA FISHERMEN FROM THE LONG-TERM RESIDENCE SCHEME

The Atypical Worker Permission Scheme for non-EEA fishers states the non-EEA migrants need an Irish work permit, visa or immigration permission to work on a fishing vessel that operates in or passes through Ireland’s territorial water or docks at an Irish port.

To qualify for the scheme, a non-EEA fisherman must be directly employed by the holder of a sea-fishing boat license in Ireland for at least 12 months. To switch to a different sea-fishing employer, non-EEA fishermen must complete an online application form. This form takes at least 20 days to process with no guarantee of approval. A Government Task Force appointed to investigate the Atypical Working Scheme for non-EEA crew noted that the procedures in place for changing one’s employer on their fishing permit are not reliable in practice.

Prospective workers admitted to the Atypical Worker Scheme for non-EEA crew in the Irish fishing fleet are unable to seek work in Ireland in a different industry, regardless of how long they have been working in the State. Limited supervision of the fishing industry leaves workers, especially non-EEA and migrant fishers, vulnerable to unfair and dangerous working conditions.

It is our belief that persons who are working in Ireland in the fishing industry on the basis of the atypical permissions scheme are being treated less favourably and are suffering disproportionate prejudice by being restricted to their employers indefinitely.

We note that the holders of Critical Skills Employment Permit holders receive stamp 4 permission after two years employment and holders of General Employment Permits receive Stamp 4 after 5 years of employment.

We note that persons eligible for regularization under the Minister’s Scheme for Undocumented people will receive Stamp 4 permission and free access to the labour market.

Meanwhile, it appears that there is no pathway for persons resident in Ireland as fishermen under the  a atypical scheme to move on to Stamp 4 permission after several years of legal residence and employment in the State.

There is no rationale as to why fishermen resident as atypical workers do not receive the same employment and residence opportunities. We see no lawful reason to restrict non-EEA fishers from progressing their careers in the State. We submit it is dangerous and unhelpful that the residency of non-EEA fishermen in Ireland rests completely on their continued employment with one employer only.

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

On 27th June 2022, Mr Justice Ferriter of the High Court gave judgment in the judicial review cases of SH and AJ. Both cases address the application of s.56 of the International Protection Act 2015.

S.56(a)(d) of the International Protection Act 2015 states that the child of an applicant for family reunification must be under 18 years of age and unmarried at the time of application for family reunification.

A basic understanding of the cases of SH and AJ is necessary to understand the High Court ruling.

SH is a national of Syria. His wife and their three children, NH (born 31st May 2009), AH (born 24th April 2003) and ZH (born 29th April 2000) remain in Syria.

SH experienced significant delays in the processing of his application for international protection as the Minister reported that the department was experiencing delays due to the onset of Covid-19. Because of these delays, SH did not receive an IPO interview until the 14th May 2021.

SH was informed by letter of a declaration of his refugee status on 1st June 2021. SH’s son, AH, turned 18 on 24th April 2021.

On 7th July 2021, SH made an application for family reunification based on s.56 for his wife and three children. On 9th July 2021, the Minister denied SH’s application for family reunification because AH and ZH were aged 18 years and 21 years, respectively, at the time of application.

On 14th October 2021, SH applied under the Minister’s administrative Join Family policy document for long stay visas for AH and ZH. The application has not yet been determined.
AJ is a national of Somalia who fled the country to avoid persecution by Al Shabab, a terrorist group. AJ arrived in the State on the 8th August 2019 and applied for international protection the same day. AJ’s wife and three children remain in Somalia. AJ’s oldest son, MJ, was born on the 2nd January 2003. AJ’s twins were born on the 8th October 2005.
AJ was formally granted refugee status on the 11th November 2020. AJ’s son, MJ, turned 18 on 2nd January 2021.

On 29th January 2021, AJ applied for family reunification under s.56 for his wife and three children. The application was denied the same day on that basis that MJ was over 18 years of age on the date of application.

AJ requested a review of this decision; the original decision was upheld.

AJ then made an application for MJ under the Minister’s administrative Join Family policy document for a long stay visa. This application was refused on the 6th May 2021. AJ sought review of this decision. The review is currently pending.

Both SH and AJ hold that the delay in processing their applications led to a situation where their children aged out of eligibility for family reunification pursuant to Section 56.
The applicants further argued that the relevant date for reviewing the entitlement to family reunification is the date that the applicant applied for international protection, holding that family reunification is a right guaranteed by EU law.

Justice Ferriter held in this regard that Section 56 is a matter of policy choice by the legislature- “it follows that Section 56(9)(d) is not in breach of EU law.”
Applicant AJ also argued his entitlement for Francovich damages. The Court held that there was a breach of Article 22 of the Qualification Directive in respect of AJ’s case.

Mr Justice Ferriter concedes that both applicants likely would have been granted family reunification for all family members if not for the delays in processing their international protection applications, though the department does not bare legal fault for the lengthy processing of the applications.

Mr Justice Ferriter states that, in his view, there is no EU law right to family reunification in Ireland from the date of a refugee’s application of international protection.

Judge Ferriter referred to and relied on the Supreme Judgment of ASSI in his judgment, in which the constitutionality of Section 56(8) and Section 56(9)(a) of the 2015 were upheld.

Ultimately, Mr Justice Ferriter refused SH’s application for relief and adjourned for further review AJ’s claim for Francovich damages, stating that ‘it is difficult to form any view on the damages said to arise in circumstance where a review decision is still pending in respect of AJ’s scheme application’.

The Court held that the Court, nor the Minister was entitled to disapply a statutory provision that the applicants did not meet. The Court found that it could not re write the contents of Section 56(9)(d) and that to do so would amount to an improper usurpation of the Courts constitutional role.

The Court found that in absence of a free standing right to family reunification, the Legislature is entitled to put parameters on the rights to family reunification for the beneficiaries of international protection.

In relation to the Minister’s Policy Document on Non-EEA Family reunification, the Court commented that it is preferrable that guidelines do exist in respect of the operation of the Minister’s discretion in this area. The Court also commented that in it’s view there may be occasions, of cases of such a humanitarian nature, that to expect an applicant to wait 12 months for a decision would not be proportionate.

We submit that the provisions of Section 56 are too restrictive in nature and are causing devastation for families of refuges. We submit that the parameters of those provisions is a matter that should be revisited by the Legislature.