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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].