January 2018: Asylum, Refugee & Immigration Law in Ireland

 

Law & Policy Developments

Ireland begins opt-in to EU Reception Directive

Dáil Éireann and Seanad Éireann have consented to Ireland’s opt-in to the EU Reception Directive. The Government will now inform the EU Commission of its desire to opt in to the EU Reception Directive. You can find my analysis of some of the legal changes that will be needed to ensure we comply with the EU Reception Directive here.

Asylum Seekers Right to Work Scheme

The Department of Justice and Equality has released the post 09 February 2018 scheme for asylum seekers to access employment. The text of the scheme is available here: Information Booklet for Applicants on Access to Labour Market 9 Feb 2018.

I have expressed concerns around the significant limitations for asylum seekers entering PAYE employment. This element of the right to work scheme does not seem in keeping with the freedom to work decision of the Supreme Court. We may get an indication on 09 February 2018 as to the Supreme Court’s views on this interim scheme, when it finalises its order.

Case Law

Supreme Court

No case law to report.

Court of Appeal

EU Citizen Rights

The case of Mamhood and others, involves Ireland’s obligations under the EU Citizenship Directive and the time that it should take to decide whether EU citizens close relatives (who are not themselves EU citizens), should be granted permission to enter Ireland to work and reside. This is an appeal from several High Court decisions which held that Ireland must decide on these applications within a six week time period. The Court of Appeal have now referred four questions to the Court of Justice of the European Union. These questions generally ask: first, is a 12 month delay in issuing visas to a non-EU citizen family member in breach of Art. 5(2) of the Citizens Directive? Second, is Ireland able to delay processing in order to conduct background checks on applicants relating to marriages of convenience and/or state security checks, in particular “by reason of a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns?”

High Court

Asylum Law (Credibility and Medical Reports)

In C.M. (Zimbabwe), significant negative credibility findings were made against the applicant, as regards the inconsistencies in testimony. The applicant had a report from SPIRASI whereby it seemed the medical professional placed this information in the report. In refusing to quash the decision of the International Protection Appeals Tribunal, Humphrey’s J. noted,

“Just because you can find a highly sympathetic doctor to write down what you tell them does not make what you tell them something that a tribunal has to accept.

In line with well-established case law, the role that such evidence plays can depend significantly on the overall credibility of the applicant taken in the round. Humphrey’s J. in refusing to quash the IPAT decision, stated that the challenge was simply a “somewhat artificial and legalistic exercise”.

Asylum Law and Policy (Translation)

The Word Perfect decision of January 2018 relates to a tender for the operation of translation services within the immigration and asylum sector. The company Word Perfect challenged an award of a translation tender to a different translation company. Under EU law, once the challenge emerged, the award of tender to the new translation company was suspended. The Department for Public Expenditure and Reform sought for this suspension to be lifted by the High Court. Word Perfect had been providing translation services to the immigration sector on an ad hoc basis since January 2016. Claims were made by the Department about the poor quality of Word Perfect’s service, which Word Prefect denied. In lifting the tender suspension, Noonan J. noted the following in relation to human rights and translation services (at para 50):

I am satisfied that damages could not be regarded as an adequate remedy in circumstances where what is in issue includes such matters as the immigration status and human rights of applicants for international protection and in some circumstances, where the security of the State may be concerned. The importance of these matters, which can hardly be overstated, must in my view also bear directly on any questions of balance of convenience which I am satisfied lie in favour of the Minister. The public interest clearly favours having the best possible interpretation services available to the immigration bodies concerned for reasons that are self evident.

Asylum Law & Policy (Non-refoulement)

In H.A.A. (Nigeria), Humphrey’s J. quashed a deportation order on the basis that the decision maker had failed to refer to the correct test in relation to refoulement under s. 50 of the International Protection Act 2015. Ms H.A.A. had claimed she would face a threat to her life or person due to her sexuality. Although this ground of claim had not been raised previously, so that it put “a whole string of significant question marks over the applicant’s story”, Humphrey’s J. quashed the removal decision.

Deportation and Removal (Human Rights)

In Bertan, the applicant resided in Ireland without permission for a period of time. The Minister for Justice issued a deportation order, post representations made by Bertan. Bertan argued that the Minister for Justice was operating a ‘secret scheme’ permitting regularisation of status for persons in the protection process. Humphreys J. had previously found that no such scheme was operating, Even if it had been, Bertan did not make any claim for international protection, so was outside the scope of any such scheme. Another ground of challenge was that Bertan’s children, who resided in the Phillipines, would have their rights under Art. 8 ECHR if their mother did not continue working in Ireland in order to pay for their education. Humphreys J. stated:

the applicant has not worked since 2014, so any hypothetical stream of money to pay for the children’s education simply does not exist. The children are of course in the Philippines. The argument that to deport this applicant from Ireland would breach their art. 8 rights seems to me to be unsustainable.

In the case of de Souza and others , Humprehey’s J considered the Article 8 ECHR (private and family life) rights of a Brazilian family who overstayed their visitor visas. The husband arrived in Ireland in 2010, with his wife and family following afterwards. Humphrey’s J. was satisfied that there existed no right under Article 8 ECHR (right to private and family life), as indirectly applicable in Ireland by virtue of the ECHR Act 2003, that would prevent the State from removing long term visa over-stayers. The fact that relatives of the family lawfully resided in Ireland, was not of such an exceptional circumstance that would amount to an insurmountable obstacle to the De Souza family recommencing family life in Brazil.

In A.B. (Albania), Humphreys J. discharged an injunction that had been preventing A.B.’s deportation. A.B. had, amongst other issues, claimed that his Art. 3 and Art. 8 rights would be violated if returned to Albania. A.B. suffered from depression, and there was contradictory evidence relating to his relationship with his brother (a recognised refugee in Ireland). There was no evidence presented that would have led to the conclusion that the Minister for Justice and Equality failed to consider representations on both issues. Humphreys J. also had to emphasise to counsel, yet again, that the EU Charter of Fundamental Rights cannot be advanced in deportation decisions. Deportation is solely an issue of Irish law, not a matter of EU law.

In a subsequent case, V.D. (Zimbabwe)Humphrey’s J. had to consider whether to quash a deportation order for Mr V.D. Mr V.D. suffered from epilepsy, memory loss and other ailments and his mother and siblings lived in Ireland. V.D. argued that he would lack any care or place to live if returned to Zimbabwe. While having “a certain sympathy for the applicant”, Humphrey’s J. was categorical in emphasising that only in the most exceptional of circumstances will a total lack of healthcare in the country of origin, will raise issues under Article 3 ECHR. The judge also stated that the Minister had knowledge of the difficulties that the applicant may face in Zimbabwe, but the Minister was entitled to say “that such humanitarian factors as were advanced were insufficient to outweigh the public interest in deportation. The applicant was an unsettled migrant, and no issues of family or private life (protected by Article 8), warranted the quashing of the deportation order.

In M.I (Pakistan), Humphrey’s J refused to grant an injunction preventing the removal of the unsuccessful asylum applicant to Pakistan. Mr. M.I. made the application for the injunction at the latest possible moment. Only upon his detention did Mr. M.I. make an application for readmission into the asylum process, which was refused by the Minister for Justice. This, Humphrey’s J. stated, with reference to case law showed that “the application for readmission is prima facie abusive and presumptively for the purposes of delay”.

In the case of A.B. (Albania) No. 2, Mr. Justice Humphrey’s refused to certify questions for appeal to the Court of Appeal. While there were a number of issues put forward, the core related to the level of dependency that has to be taken into consideration in deciding to revoke a deportation order. The question of whether dependency on a brother gave rise to Article 8 ECHR rights did not arise in this case, as the evidence placed before the Court came nowhere near showing the level of dependency that may engage Art. 8 ECHR.