Family Reunification: A Barrier or Facilitator of Integration? Implementation and Interpretation of...

Family Reunification: A Barrier or Facilitator of Integration?

Implementation and Interpretation of EU Law and CJEU Jurisprudence at National Level

Hilkka Becker, Senior Solicitor, Immigrant Council of Ireland

IntroductionIntroduction

developing case law on:- refugee family reunification applications- EU free movement rights- third-country national family members of Irish citizens

absence of formal integration requirements such as financial means, availability of adequate housing and the passing of language or civic tests

matters to be considered in the context of deportation: - duration of residence in the State of the person- family and domestic circumstances- nature of the person’s connection with the State

POT v The Minister for Justice, Equality and Law Reform: High Court recognising the importance of family reunification as a provider for integration

OverviewOverview

1.) Transposition of EU law and jurisprudence regarding the residence of EU nationals and their family members

2.) Implementation of EU Law Relating to the Rights of Citizens

3.) Application of EU Law in the Context of Refugee Family Reunification

Transposition of EU law and jurisprudence Transposition of EU law and jurisprudence regarding regarding the residence of EU nationals and their family the residence of EU nationals and their family membersmembers

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

1.) Lack of visa facilities at the border

Raducan v Minister for Justice, Equality and Law Reform: unlawful refusal by an immigration officer to grant the spouse of a Romanian citizen permission to enter the State on the grounds that, although in possession of a residence card for family members issued in another Member State, in this case Romania, she did not have a visa


2.) Requirement of prior lawful residence in another Member State

Metock and Ors v Minister for Justice, Equality and Law Reform (CJEU): refusal of residence cards to family members on the basis that they did not satisfy the condition of prior lawful residence in another Member State as then required by Regulation 3(2) of the 2006 Regulations was in breach of Directive 2004/38/EC

European Communities (Free Movement of Persons) (Amendment) Regulations 2008


3.) Power of arrest arrest at the registry office on the grounds that the proposed marriage was a ‘marriage of convenience’?

Izmailovic & Anor v The Commissioner of An Garda Síochána & Ors:

‘no matter how well intentioned, An Garda Síochána [the Irish police force] are not empowered to prevent the solemnisation of a marriage on the grounds that they suspect – even with very good reason – that the marriage is one of convenience’.


4.) Delay in the decision-making process concerning applications by third-country family members

Tagni v MJELR: ‘the six month time limit in Article 10 is mandatory and requires to be respected in every case’

‘there will also be cases from time to time, where (…) the Minister, at the end of the six months, finds himself with a suspicion, unsupported by clear evidence, that the claim may be fraudulent, and which suspicion requires further investigation’

‘the Minister is still obliged to render a decision at that point’


5.) Refusals of residence permits based on inability to verify the EU citizen’s employment

Lamaz & Anor v MJELR: ‘(…) if it is considered necessary to make such checks they must be done competently and seriously: the mere fact that casual phone calls (if that was the form of attempted contact,) may be unanswered does not constitute an adequate basis for a refusal which effectively implies a suspicion on the part of the part of the Minister that the employment claimed does not exist’


6.) Retention of residence permits following changes of circumstances

Mohamud & Anor v MJELR: ‘the refusal is,(…), based upon a mistake of law and involves the effective imposition of a requirement not countenanced by the Regulations or the Directive’

The decision to refuse the residence permit in this case was ‘vitiated by error of law and the effective imposition of a condition for the issue of a Residence Card unjustified by the Regulations and incompatible with the provisions of the Directive’


7.) Failure to grant family members access to the labour market pending the outcome of their application for a residence card

Decsi & Ors v MJELR: challenge against what appeared to be an attempt to prevent third-country national family members from working whilst their application for a residence card was being processed

Granting a declaration in favour of the applicants, Mr Justice Cooke confirmed that a third-country national has an entitlement to work in the State as of from the date of the acknowledgment of the application for a residence card. Article 10(1) of the Directive provides that the right of residence is merely evidenced by the issuing of the residence card, as opposed to conferring the right to reside in the State.


The future?

MR and ors (EEA extended family members) Bangladesh: referral of six questions regarding the rights of ‘other family six questions regarding the rights of ‘other family members’ to the CJEU, including the question whether “the members’ to the CJEU, including the question whether “the class of other family members referred to in Article 3(2) and class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC” is “limited to those who Article 10(2) of Directive 2004/38/EC” is “limited to those who have resided in the same country as the Union national and his have resided in the same country as the Union national and his or her spouse, before the Union national came to the host or her spouse, before the Union national came to the host state?”state?”

Implementation of EU Law Relating Implementation of EU Law Relating to the Rights of Citizensto the Rights of Citizens

1.) Irish Citizen Children

Zambrano v Office national de l’emploi (ONEm): ‘(A) refusal to grant a right of residence to a Third Country National with dependent minor children in the Member State where those children are nationals and reside, and also the refusal to grant such a person a work permit, […] ‘has the effect of depriving those children of the genuine enjoyment of the substance of the rights attaching to the status of European citizen’

introduction of specific application procedure for parents of Irish citizen children in certain circumstances


E.A. & Anor v Minister for Justice & Anor: ‘Ruiz-Zambrano turns on factors (…) such as dependency, residence in the territory of the Member State in question and the right of European citizens to enjoy one of the real benefits of that citizenship, namely, the right to reside within the territory of the Union’

In a situation where the parents of an Irish citizen child are separated and the mother holds refugee status, there was found to be ‘no real prospect that the deportation of the [the father] would bring about a situation where [the child] would be compelled to leave Ireland or, for that matter, the territory of the Union’ and that ‘there are no grounds for contending that [the father] is entitled to an interlocutory injunction restraining his deportation on Zambrano grounds’


2.) Adult Irish Nationals

Troci & Anor v The Minister for Justice & Equality and Ors: McCarthy v Secretary of State for the Home Department (Case C-434/09) Dereci & Others v Bundesministerium fuer Inneres (Case C-256/11) O, S and L v Maahanmuuttoviras (C-356/11 and C-357/11)

‘(L)ike Mrs McCarthy [in the UK], Ms Healy enjoys an unconditional right of residence in Ireland. Most importantly, Ms Healy is not at risk of having to leave the territory of the EU. The deportation of Mr Troci will not see her deprived of her means of subsistence as she is not financially dependent on him, which was one of the distinguishing factors between the position of the Union citizen children in Zambrano and those in O, S and L.’


Troci & Anor v The Minister for Justice & Equality and Ors: (contd.)

‘it has not been established that there is a real impediment to Mr Troci and Ms Healy establishing family life elsewhere in the EU’

‘there was no compelling evidence that it would be unreasonable to expect [Ms Healy] to join Mr Troci in Albania’

The Court also rejected the argument that Article 41 of the Constitution should not be so weakly interpreted as to sanction reverse discrimination of Irish citizens under EU law.

Application of EU Law Application of EU Law in the Context of Refugee Family Reunificationin the Context of Refugee Family Reunification

limited application of EU law in the context of refugee family reunification due to the fact that Ireland has not opted-in to Directive 2003/86/EC on the right to family reunification

Aslam v MJE & Ors: ‘the spouse has to be the spouse of the applicant at the date of the asylum application itself” contrary to this view, the CJEU held in the case of Chakroun v Minister van Buitenlandse Zaken that Directive 2003/86/EC, (…) must be interpreted as precluding national legislation which, (…) draws a distinction according to whether the family relationship arose before or after the sponsor entered the territory of the host Member State

Ducale & anor v Minister for Justice and Equality & Ors: there was‘no discernable objective yardstick by which the measure of dependency was assessed’ and the Minister’s assessment seems to have been “no more than an arbitrary evaluation based on no identified criteria”.

Join the Petition!

I believe that Irish citizens and people living in Ireland legally, should have the right to be with their loved ones under Irish law.

I am asking the Government to address this issue by introducing rules on Family Reunification which are transparent, fair and just for all…

THANK YOU

http://www.change.org/en-GB/petitions/minister-for-justice-alan-shatter-td-introduce-fair-and-transparent-rules-for-family-reunification

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