High Court finds "door cannot be shut" even by deportation

In BS & Ors v Minister for Justice, Equality and Law Reform, Ms Justice Clark in the High Court considered an application by a married couple to quash a decision of the Minister refusing to revoke a 2002 deportation order (carried out in 2003) against the husband. The applicants claimed that the deportation infringed their legal, constitutional rights and/or family rights under the European Convention on Human Rights.

The wife and second applicant was a Nigerian national (who had later become an Irish citizen by naturalization), with two Irish citizen children. The younger of these children (the third applicant, born in 2003) was the son of the husband - whom she had met in 2002 and married in 2003 before he was deported and before the third applicant was born. Since the deportation order was carried out, the husband had been unemployed and was living in Nigeria, whilst the wife was employed in Ireland and the children attended school there. The wife supported the husband financially, and the family occasionally visited him on holiday in Nigeria.

The applicants applied for revocation of the deportation order in 2009. The focus of this application was that the Minister had never been made aware that the husband was married and his wife was pregnant with his Irish citizen child at the date of deportation. The Minister refused to revoke the deportation order on a variety of grounds, including that the affirmation of the deportation order would not interfere with the father's ECHR Article 8 rights, and the need of the Irish state to protect its borders.

Following the reasoning of Fennelly J in Cirpaci v Minister of Justice, Justice Clark found that the Constitutional rights of the children and wife who had remained here were very strong. Justice concluded that it would be disproportionate to expect the mother and two Irish national children to move to Nigeria, and to refuse to revoke the deportation order simply on the basis of immigration control.

The effect of the judgment in this case therefore suggests that the "door cannot be shut" by deportation, and even an entirely valid deportation cannot amount to a permanent exclusion order.

This was a pre-Zambrano case and the judge expressly "refrain[ed] from making any determination on the applicability of the Zambrano ruling to this or any other similar application". As the father was deported before the Irish national child was born, he would not have qualified for a visa or leave to remain under Zambrano. As the Irish Constitution already provided the necessary protection for the family, the judge felt there was no need to rely upon European law although she noted that Article 8 of the ECHR "represents the other side of the coin in the insurmountable obstacles test".

Click here to read a PILA Bulletin piece from May 2011 on the Zambrano case.

Click here to view guidance issued by the Irish Naturalisation and Immigration Service post-Zambrano.

Irish High Court quashes denial of Palestinian family's asylum application

In Nateel & Ors v Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal, the High Court quashed a finding of the Refugee Appeals Tribunal on the basis that its conclusion had "no evidential foundation". In this case Justice Hogan heavily criticised the facts that the Tribunal took into consideration, and the weighting it placed on them, when refusing the applicant's asylum claim.

The applicant Mrs Nateel was a Palestinian who lived in the Gaza Strip until 2009, working as a teacher. Her husband was a director general of a Palestinian non-governmental organisation, who had been undertaking doctoral studies in Britain since 2005 (and accordingly had permission to live in Britain and travel to and from Ireland). As a result of one of the woman's children being an Irish national (born in Belfast in 2003), Ireland's Department of Foreign Affairs had evacuated the family (Mrs Nateel, the Irish national child and her three other children) to Dublin via Cairo following Israel's 2008 offensive against the Gaza Strip.

Justice Hogan noted that the Tribunal's decision - which rejected the applicant's asylum claim on credibility grounds - made heavy emphasis on the fact that the applicant's husband had not applied for asylum. Justice Hogan acknowledged that there are "many circumstances where the failure of one spouse to claim asylum might seriously impact on the credibility of the other spouse who is claiming asylum." In this case however, he found that the applicant's husband had given "a perfectly valid and completely tenable explanation" - namely he did not need to claim for asylum because he had lawful status in the UK. The judge also criticised the Tribunal's emphasis on the applicant's husband's salary, saying it was not clear how that was "in any way relevant to an issue which was before the Tribunal member." The circumstance of the Irish national child's birth (the applicant had travelled to Belfast for the purposes of giving birth), "was really fundamentally irrelevant to anything which the Tribunal was required to decide" and there was no "legitimate connection" to the asylum application.

Justice Hogan referred the case back to the Tribunal for reconsideration.

Click here to read an Irish Times article summarizing the case.

It has been revealed that non-EEA nationals who are residing and working in Ireland are being excluded from social housing lists due to a "discriminatory and unconstitutional circular" which was issued by the Department of the Environment.

The department had sent a directive to all housing Directors of Service in September 2010 detailing that only immigrants with a long-term residency "stamp 4" visa were entitled to apply for social housing.

Claire McCarthy, policy and communications officer with immigrant support group NASC, stated that the circular was inaccurate on foot of legal advice facilitated by the PILA pro bono referral scheme. She also said that councils were not using discretion when dealing with people who were clearly in Ireland long-term. She said to the Irish Examiner that "the circular has been quoted to us in correspondence from Cork City Council when we wrote appealing on behalf of people who we believe have been incorrectly refused access to social housing."

She added further: "we can say with a very high degree of certainty that the rule is not in keeping with the law. We hope that the new minister for housing, when appointed, will revoke the circular, which amounts to direct institutional discrimination."

Meanwhile, a report entitled Fundamental rights of migrants in an irregular situation in the European Union was launched in late November by the European Agency for Fundamental Rights (FRA) at the Fundamental Rights Conference. The Conference attracts about 300 people from across the EU, and attendees include policy makers, practitioners and experts.

The report's findings show that irregular migrants face a number of obstacles in countries they work in such as access education and healthcare, access to justice (such as in circumstances of employer exploitation) and finding themselves in a "legal limbo" which may mean they have no official status and are unable to access basic rights.

FRA Director Morten Kjaerum said "We employ irregular migrants as cheap domestic workers to clean our homes.....but despite their contribution to our societies, when irregular migrants try to access healthcare or education services....human rights belong to all human beings. And we remain human beings even if we do not have a passport, or a visa or a residence permit."

PILA regretfully farewelled Legal Officer Jo Kenny in early December, who has taken up a position at the Pensions Board. Jo was instrumental, along with Project Officer Lianne Murphy, in the creation of the PILA pro bono referral scheme as it exists and continues to grow today.

However, PILA is delighted to welcome Maeve Regan on board as its new Legal Officer! Maeve is a solicitor, lecturer and author with a speciality in employment and equality law. Maeve has been a member of PILA since 2010 and carried out work, in tandem with a barrister, on a forced labour issue for a migrant rights NGO. Maeve trained with Arthur Cox and upon qualification worked with the Arthur Cox Employment Law Group. On secondment from Arthur Cox, Maeve worked with Herbert Smith, London and in the international legal department of Schering-Plough in New Jersey. She is a consultant to the Law Society's Diploma in Employment Law and is the course tutor on the Law Society's Certificate in Employment Law Advocacy. Maeve is also the Editor and co-author of Employment Law (Bloomsbury Professional, 2009), which she co-authored with 22 leading employment, pension and tax lawyers. In 2011, Maeve worked as a solicitor with Northside Community Law Centre, advising on employment and equality law and social welfare law. Maeve continues to volunteer with the Centre.

Upon her appointment Maeve said "PILA' s creation of a centre for public interest law has changed the legal landscape. PILA's groundbreaking work has enabled and organised the bringing together of the unique legal skills of practitioners with the needs of community groups and NGOs . I am delighted to join the excellent team and to give my best to continuing PILA's important and valuable work."

Maeve can be contacted directly at maeve.regan@flac.ie.

The UK government is taking legal action to the European Court of Justice over EU rules that would allow non-EU nationals to obtain benefits in that country, even though the claimant may not be working or paying taxes. The Commission says that EU-wide "habitual residence" requirements are sufficient, and a further restriction would indirectly discriminate against non-UK nationals. The UK government says it is entitled to stop "non-active" non-EU migrants from claiming benefits because of that country's ability to opt-out under existing EU treaties.

Employment minister Chris Grayling said to the BBC, "We remain absolutely clear that it is wrong for people from other countries to get our benefits without working and paying taxes in this country....this legal action is designed to send a clear message that this is not acceptable."

The UK had been previously warned this year by the European Commission over its benefit eligibility tests and how they affect to EU nationals - namely that it is easier for UK citizens to prove their "right to reside" in the UK than it is for other EU nationals. Click here to see a Bulletin article with details of cases where both a non-UK EU national and a non-EU national had difficulty establishing their right to reside in the UK.

The UK Justice Secretary Kenneth Clarke has announced that there will be a six month delay to April 2013 in implementation of proposed legal aid cuts, such as the introduction of a "telephone gateway" and the abolishment of the Legal Services Commission. The government claims the reason for this delay is because legal contracts need to be rescheduled, however it comes amidst staunch opposition to cuts from social welfare organisations and the House of Lords.

Mr Clarke said "We intend, subject to parliamentary approval of the legal aid, sentencing and punishment of offenders bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the bill and the creation of the new agency in its place." Mr Clarke had also said to the Financial Times that attempting to implement the cuts any earlier would be an "administrative train crash".

Justice For All, a campaign for free legal advice, says it is "hopeful significant improvements to the planned cuts can be achieved, softening the blow - but there is no doubt that in a little under 18 months time thousands more people with serious but everyday problems will be left with nowhere to turn." UK Supreme Court judge Baroness Hale has also warned of the negative consequences of the legal aid cuts in a speech at a Law Centres' Federation conference.

Meanwhile in Ireland, criminal lawyers went on strike last week over the cuts in the criminal legal aid budget, leading to around 120 cases being adjourned. The Criminal Law Practitioners Association, a coalition of barristers and solicitors had called the strike on the basis of "a cut in fees under the [legal aid] scheme of up to 40pc since the recession began". Minister for Justice Alan Shatter said to the Irish Seanad that the striking lawyers were a "disgrace" and that some of those involved had received "enormous fees" in the past.

Launch of ECtHR Admissability Checklist

The European Court of Human Rights (ECtHR) has launched an online admissibility checklist for lay applicants to limit the amount of inadmissible applications lodged in the Strasbourg court.

Inadmissible applications have increased the workload of the Court and Registry and so the measure may alleviate some of this increased pressure. Although the checklist is issued by the ECHtHR itself, it has no legal force. The ECtHR has said it envisages that the measure will assist applicants in the time-consuming and lengthy process of inadmissible applications.

Launch of EU Immigration Portal

The European Commission has launched a new immigration portal. The laws and policies for each of the 27 Member States are detailed on the website, together with links to relevant authorities and support organisations. The Irish sections provide a breakdown of the various laws and policies as they apply to family members of non-EU citizens, non-EU workers, students and researchers.

Following last issue's Bulletin piece on the global quest by UK legal rights group Human Dignity Trust to decriminalise homosexuality around the world, recent developments in Nigeria and South Africa show that there is still a long road ahead for those seeking tolerance and equality for LGBTI people.

Nigerian government restricts same sex rights and prohibits same sex marriage
A bill which prohibits same sex marriages has been enacted in Nigeria and the offence will now carry a 14 years prison sentence. Groups advocating gay rights will also be prohibited under the new law. A debate took place in Lagos where one senator referred to homosexuality as a "mental illness" and another senator commented that "such elements in society should be killed."

The Guardian reports that the view taken by some Nigerians is that the bill is a method of gaining political support in a largely religious society where there is a great intolerance of homosexuality.

Gay writer and activist Unoma Azuah commented "I've never heard of a single Nigerian same-sex couple demanding to have marriage rights....So I am truly baffled as to why our lawmakers feel this debate is more relevant than terrorism, corruption, lack of infrastructure and education. The whole thing reminds me of the traditional Igbo proverb that says, he whose house is on fire does not go around chasing rats."

Report by Human Rights Watch reveals that the gay community in South Africa lives in fear

Human Rights Watch have released a report which interviewed 121 lesbians, bisexual women and transgender men over two years in some of the townships in South Africa. Although same-sex marriage is legal in South Africa under its constitution, the cultural traditions do not always reflect its far-reaching provisions.

Human Rights Watch called on the South African government to establish "a sustained, large programme that embraces education in schools and engages with religious leaders" in order to counteract the problem of attacks on homosexuals. However, victims are reluctant to report attacks as they fear that their case will not be given full consideration.

Some lesbians have even been murdered due to their sexuality and activists maintain these crimes should be considered hate crimes. A gender policy analyst Nomboniso Gasa commented: "If there was any other group that was targeted in the way LGBTI [lesbian, gay, bisexual, transsexual and intersex people] are targeted, South Africa would declare a crisis. This report lifts a veil of silence to make a visible the realities South Africa would rather pretend do not exist."