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UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  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.

UPDATE ON CITIZENSHIP APPLICATIONS FOLLOWING THE JONES RULING

Further to our recent blog on the High Court’s findings in the case of Jones v The Minister for Justice and Equality, which can be read in full here, the Irish Naturalisation and Immigration Service of the Department of Justice have published a notice addressing the judgment and the concerns it has raised.

The Court had found in Jones that the law governing eligibility for naturalization as an Irish citizen requires ‘continuous residence’ in the year prior to application and that ‘continuous residence’ is defined as per the generally accepted understanding and dictionary definition of ‘continuous’, with the implication, therefore, that even one day’s absence from Ireland in the year prior to application will break the continuous residence requirement and render a person ineligible to apply for naturalization.

This judgment has understandably caused deep concern and worry for many and in response the INIS has now issued a statement providing the following:

“We are aware that the judgment in this case has given cause for concern and may have been upsetting for many people who are in the citizenship process. We want to assure you that we are taking all appropriate steps to remedy the situation as quickly as possible. The best interests of applicants and future applicants are foremost in our considerations.”

For those planning on submitting an application or who already have an application pending, the Department goes on to confirm that it is continuing to receive and process applications as usual and it emphasises that that they are not advising current applicants or future applicants to cancel any current or future travel plans in light of the judgment.

The Department advises that anyone who is planning on applying for naturalization continue preparing their application, collecting the necessary documentation and submit this together with a complete application form, stating that once they have formulated a solution to address the implications of the ruling they will be in touch with applicants should any further information be required.

The Department confirm that preparations are still going ahead as planned for the upcoming Citizenship Ceremony in September.

Importantly, the Department also state that they “do not believe that this ruling has consequences for anyone who has already obtained citizenship under the Act”. This will hopefully come as a reassurance to many who are concerned that their citizenship may be in question following this judgment.

Finally, the Department confirms that they are working to find a solution to address the ruling as a matter of urgent priority and that they will post on their website as updates occur.

We will be posting about any further developments from the Department as they arise and should you have concerns about your case in the meantime please do not hesitate to contact us.

The INIS statement can be read in full here.

A QUESTION OF THE LEGALITY OF THE USE OF DOMESTIC DEPORTATION LAW FOR FAMILY MEMBERS OF EU CITIZENS – CHENCHOOLIAH

Regulation 20 to Regulation 22 of the European Communities (Free Movement of Persons) Regulations 2015 implement the Minister’s powers for removal in accordance with Council Directive 2004/38/EC.

The Regulations direct that the Minister may make a removal order against a Union citizen or their family member where the person is no longer entitled to be in the State in accordance with the 2015 Regulations.

However, in practice, the Minister has been invoking the domestic deportation procedure under Section 3 of the Immigration Act 1999 as amended in the circumstances of family members who fall outside the remit of the 2015 Regulations.

The Minister’s approach to utilise the domestic deportation process for family members who have fallen outside the remit of the Regulations, has the effect that the proposed deportee looses certain rights and entitlements available under the 2015 Regulations. For example, a deportation order under domestic law is indefinite in duration while a removal order under the 2015 Regulations expires once the removal has been carried out.

The Minister’s actions have been challenged in a number of judicial review proceedings, the lead of which is the case of Nalini Chenchooliah v the Minister for Justice and Equality, Case C-94/18. In this case, a preliminary reference was made from the Irish High Court to the Court of Justice to seek clarification on the State’s entitlement to use domestic deportation legislation over the removal procedures envisaged by Directive 2004/38.

The questions referred were as follows:

Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive 2004/38/EC has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty Rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

If the answer to the above question is that the expulsion must be made pursuant to the provisions of the Directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?

Ms Chenchooliah argued that as a person who at one time, on account of her marriage to an EU citizen, she previously had a temporary right of residence under Article 6 of Directive 2004/38, and therefore she continues to fall within the scope of that directive and can therefore be expelled from the territory of the host Member State only in compliance with the rules and safeguards provided for in that directive.
It is interesting to note the opinion of Advocate General Szpunar of the 21st May 2019, in in which the Advocate General took the same position as Ms Chenchooliah;

“Therefore, in the light of the foregoing considerations, I am of the view that, since the discontinuation or expiry of a right of residence forms part of the final stage of the exercise of freedom of movement, the expulsion from the territory of the host Member State of a third-country national spouse of a Union citizen continues to fall within the scope of Directive 2004/38, in particular Article 15 thereof, where that citizen has ceased to exercise his freedom of movement in the host Member State by returning to the Member State of which he is a national.”

The case was heard by the Court of Justice on the 15th January 2019 and judgement is currently awaited.

Should the Court of Justice concur with the Advocate General and find in favour of Ms Chenchooliah’s position, it would be appear that many deportation orders issued by the Minister in recent years will be unlawful and in breach of the EU treaty rights law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No to (i).

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

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

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

The full judgment can be read here.

SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

NEW PRACTICE DIRECTION FOR ASYLUM AND IMMIGRATION CASES IN THE HIGH COURT

A new practice direction on asylum and immigration cases issued by President of the High Court Mr Justice Peter Kelly on the 17th December 2018 has created significant changes in the Asylum and Immigration court, and imposed significant new obligations on both solicitors and applicants.

Practice Direction 81 came into force on the 1st January 2019 and applies only to cases on the Asylum and Immigration list. The obligations imposed by High Court Practice Direction 81 are significant and wide-ranging.

Following the issuance of this practice direction, there is a requirement on all applicants to disclose a substantial amount of information and documentation to the Court regarding their case, including details of all previous immigration applications made by any applicant or their family member in Ireland or any other country and details of any previous or current civil or criminal proceedings. This is the case even when the applicant’s family members are not involved in the Judicial Review proceedings.

 

Under the Practice Direction all adult applicants are required to submit a further affidavit providing the information as requested in the Practice Direction. There is also a requirement that the applicant’s solicitor swear an affidavit in relation to the proceedings.

 

The Practice Direction requires the following to have been completed in respect of every new asylum and immigration case initiated after the 1st January 2019.

  • Provide the Court with all relevant material facts by way of a sworn affidavit
  • Provide a full account of the applicant and relevant family member’s immigration history, to include an account of any applications made to the Department of Justice or any other immigration or protection authority both in Ireland or in any other country – this would include previous visa or immigration applications to any State.
  • Exhibit the full immigration file for all immigration/protection applications of every applicant made both in Ireland and other countries. If such documents are not exhibited, a full explanation as to why they have not been exhibited and provide an outline of what attempts have been made to acquire the documents
  • Draw the Court’s attention to any “significant matter of fact adverse to the applicant’s case”
  • Swear that all previous representations made to the Department of Justice or any other immigration authority have been disclosed, or if not, to explain why not
  • Swear that all previous statements or representations made to the Department of Justice or any other immigration authority for the applicant and family members is the truth in every respect, or if not, particularising the extent to which any such statements or representations are untrue;
  • Swear that all statements in the Statement of Grounds are true in every respect, or if not, particularising the extent to which they are not true;
  • Swear that the applicant is aware that it is an offence of perjury to make a statement in any affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading.
  • Identify the applicant’s religion and confirming that the grounding affidavit has been sworn in a specified manner recognised by that religion
  • Swear that the contents and implications of the averments of verification, all statements in the statement of grounds and the details of all previous claims and representations made by or on behalf of the applicant or any member of his or her family, or any solicitor on behalf of any of them, have been fully explained to the applicant by his or her solicitor, and that the applicant fully understands same
  • Specify the language that the applicant understands and confirming that the applicant fully understands the affidavit and its exhibits in the language in which it is sworn.
  • Exhibit any document in a language other than English with a translated document by official translation company
  • Disclose any criminal offences/convictions/proceedings in Ireland or any other country
  • Disclose if the applicant has issued any legal proceedings in any immigration/criminal/civil matter in Ireland or any other country
  • Swear and file a further affidavit in respect of any new material relevant to the court subsequent to the grounding affidavit
  • Attend the substantive hearing of the case in person if ordinarily resident in the State, and if required to orally confirm the averments of verification set out in the affidavits.
  • Applicants may be required to complete and submit to the court checklists of the requirements in the Practice Direction as may be required by the Judge from time to time

 

Berkeley Solicitors has recently contacted all clients who have current Judicial Review cases active in our office to explain the new requirements imposed by the practice direction. If there are any further developments on the new Practice Direction there will be a further update on the Immigration Blog and clients will be contacted.

REDUCTION IN SUCCESSFUL HUMANITARIAN APPLICATIONS

The past two years have seen a steep drop in the rate of successful humanitarian applications in the State. While 2015 saw a 60% rise in the granting of leave to remain over one year (Holland, 2015) the introduction of the International Protection Act, 2015 has seen the rate of humanitarian leave granted plummet to only 163 people in 2017, down from 465 in 2016 and 1,201 in 2015 (Power, 2018).

The Leave to Remain process is explained by the McMahon report (Department of Justice, 2015) as follows;

“The consideration by the Minister for Justice and Equality of whether or not to issue a deportation order in respect of a person who has been deemed not eligible for protection. If the decision is that a deportation order should not issue, leave to remain in the State is granted under Ministerial discretion following consideration of representations submitted, including in relation to the matters set out in section 3 of the Immigration Act 1999.”

Attention was brought to this steep drop in humanitarian leave being granted by TD Catherine Martin of the Green Party, representing Dublin Rathdown. In response to Ms Martin’s parliamentary question, Minister Charlie Flanagan’s answer was as follows (Dáil Debates,23rd January 2018);

“I am advised by the Irish Naturalisation and Immigration Service (INIS) of my Department that the information sought by the Deputy is included in the table.

The number for 2017 is influenced by the introduction of the new International Protection Act which required significant changes to procedures as well as the introduction of the transition provisions of the Act which required a significant number of cases to revert for processing to the International Protection Office.  All of this impacted on the number of cases brought to finality. With the new procedures bedded down the rate of processing is expected to increase significantly in 2018 and beyond.

Year    Leave to Remain

2016    465

2017    163

Total    628”

As stated by Minister Flanagan, it is presumed that the drop in successful humanitarian leave applications  is largely due to the introduction of the International Protection Act, 2015. The International Protection Act, 2015 was designed to streamline and improve the asylum process in the State, which was infamously overburdened and delayed. Minister Flanagan in the above statement, submits that the drop in successful humanitarian applications is due to moving all cases into the simplified asylum process introduced by the Act, and not due to an increased rate of rejection for applicants.

It remains to be seen whether this drop in applications is in fact due to the transitional issues associated with the State’s reform of the asylum and leave to remain process, or if it instead indicative of a continuing issues with delay in spite of the new Act.

Dáil Debates, Asylum Applications Data, 250, 23rd January 2018, [https://www.kildarestreet.com/wrans/?id=2018-01-23a.505&s=%22leave+to+remain%22#g506.q] [Accessed 6 Feb.2018].

Department of Justice (2015). Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers. [online] Dublin: Department of Justice. Available at: http://justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf [Accessed 6 Feb. 2018].

Holland, K. (2015). Number of asylum seekers given leave to stay up by 60%. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/number-of-asylum-seekers-given-leave-to-stay-up-by-60-1.2437131 [Accessed 6 Feb. 2018].

Power, J. (2018). Sharp fall in asylum-seekers granted humanitarian reprieve. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/sharp-fall-in-asylum-seekers-granted-humanitarian-reprieve-1.3379239?mode=amp [Accessed 6 Feb. 2018].