Asylum Law in the European Union (Routledge Research in Asylum, Migration and Refugee Law) 1st Edition, Kindle Edition by Francesco Cherubini (Author)

Asylum Law in the European Union (Routledge Research in Asylum, Migration and Refugee Law) 1st Edition, Kindle Edition

by Francesco Cherubini (Author)

This book examines the rules governing the right to asylum in the European Union. Drawing on the 1951 United Nations Convention relating to the Status of Refugees, and the 1967 Protocol, Francesco Cherubini asks how asylum obligations under international refugee law have been incorporated into the European Union.

Te koop bij Amazon.com en Bol.com (ivm verzendkosten voor een papieren versie is die dan aan te raden. De link laadt wat langzamer dan die van Amazon. Amazon heeft echter ook een huurversie voor nog geen 20 dollar)






Wellicht is mijn boekenblog ook interessant: http://dutchysbookreviews.blogspot.nl/l

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EUROPEAN WEB SITE ON INTEGRATION (EWSI) SPECIAL FEATURE 2012/02 FAMILY REUNIFICATION

The European Web Site on Integration presents a new document with recent developments on family reunification in Member States and at EU level, including the Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC).

http://ec.europa.eu/ewsi/UDRW/images/items/docl_28099_12672183.pdf

Special thanks to Laura for posting it.




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Barriers to entry: spouses’ English tests upheld (Part1)

Language is the commonest human currency and it has an historical connection to culture and politics. Ostensibly, English remains the lingua franca of the world. Yet its imposition upon people – often far away in a Gujarati, Punjabi or Yemeni town or village – in order to allow them to join their spouse in the UK is synonymous with cultural imperialism. Considering that the majority of developing countries’ populations are illiterate, the expectation that a grown up person, or someone in old age, can learn English to come to the UK to cohabit seems utterly arbitrary, discriminatory and unfair.

Such arguments, however, could not convince Birmingham’s High Court in R (Chapti & Ors) v SSHD [2011] EWHC 3370 (Admin), a test case where Mr Justice Beatson found that the aims of the pre-entry English language tests (set at level A1 of the Common European Framework for Referencing) for spouses contained in immigration rule 281 – and like requirements for civil partners, fiancé(e)s, proposed civil partners, unmarried and same sex partners – were “fundamentally benign” (at paragraph 88). The tests (or the “new rule”) were introduced into the immigration rules in November 2011.

Under the rules exemptions exist for applicants (a) aged 65 or above; (b) with a physical or mental condition; (c) with exceptional compassionate circumstances; (d) from certain English speaking countries; (e) with acceptable foreign academic qualifications (confirmed by NARIC); and (f) from the 30 or so countries without test centres – “automatically” satisfying point (e).

It is noteworthy (at paragraph 55) that a Pakistani woman whose gunshot wounds to the head resulted in partial paralysis and no speech could exceptionally qualify only when assisted by a verifiably genuine medical report, whereas others in similar predicaments without verifiable documents had less luck!

The decision sits uncomfortably with the UK’s thriving immigrant community and organisations such as Liberty and JCWI – which intervened in the case. Despite his avuncular (and in places inflexible) judgment, Beatson J granted the claimants permission to appeal.

The three claimants brought judicial review proceedings against the home secretary on the grounds that the tests violated their Convention rights by disproportionately breaching their Article 8 rights to a family life and the right to marry under Article 12. Equally, it was claimed that the requirement was discriminatory and Article 14 was therefore also engaged. Moreover, the claimants raised irrationality but the home secretary saw the measure as facilitating integration.

No matter what the pros of the debate might be, the rule will inevitably prejudice the poor more than the rich because the tests cost money and learning English abroad is not cheap. Moreover, test centres are not universally available. Yet in the home secretary’s view the interference with the claimants’ Article 8 rights was proportionate because the UK was not obliged to respect the choice of the claimants’ country of matrimonial residence.

In the oral hearing in July, Beatson J agreed to give his judgment after the UK Supreme Court handed down judgment in R (Quila) v SSHD [2011] UKSC 45 so as to allow the parties to make written submissions on its implications for the three claimants.

In addition to the above grounds the claimants, relying on the CJEU’s decision in C-34/09 Ruiz Zambrano, also raised discrimination – in comparison with Union citizens’ spouses (who are excluded from the requirement’s ambit) – but the home secretary riposted this by citing C-434/09 McCarthy and submitted that where a British citizen’s spouse’s right of free movement had not been exercised no obligation to grant immigration status was owed. The parties agreed to postpone proceedings on the EU ground until a more propitious moment in the ongoing case of Bhavyesh CO/4526/2011.

Just a glance at paragraphs 24 – 27 of Beatson J’s judgment reveals the horrific circumstances which Gujarati applicants for entry clearance routinely face. Mrs Chapti, aBritish Overseas citizen who was subsequently naturalised as a British citizen and who married in 1976, repeatedly battled the authorities to reunite her family. Failing to get entry clearance for her husband in 2007, Mrs Chapti abandoned the appeal and her husband and son reapplied in late 2009; the applications were refused again (on maintenance grounds).

Upon appeal an Immigration Judge added insult to injury by finding the Chaptis’ subsisting marriage to be legally invalid and remarked that outside of a Gujarati environment Mr Chapti would be unable to work in the UK because he spoke no English: the case is presently in Upper Tribunal proceedings. (It is usual for people from India, especially Gujarat, to suffer terrible immigration problems and spend large sums of money in trying to join their loved ones in the UK: hence proceedings in immigration tribunals are routine for most families.) Judicial review proceedings were nevertheless taken because Mr Chapti would not be able to satisfy the requirement without which the fee for his application (£810) would be wasted.

Go to part 2: http://vreemdelingenrechtcom.blogspot.com/2011/12/barriers-to-entry-spouses-english-tests_19.html

(Original article: http://asadakhan.wordpress.com/2011/12/19/barriers-to-entry-spouses-english-tests-upheld/




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Ierse reactie op het Zambrano-arrest

Let wel: Ierland heeft een totaal verschillende manier van de onze om nationaliteit te krijgen (ius soli-beginsel, geboorteplaats in plaats van nationaliteit ouders). Dus daar zal een situatie als bij de familie Zambrano veel meer voor kunnen komen.

Statement by Minister for Justice, Equality and Defence, Mr Alan Shatter, TD, on the implications of the recent ruling of the Court of Justice of the European Union in the case of Ruiz Zambrano
Background

The Zambrano case was referred to the ECJ by a Belgian tribunal. Ireland
along with a number of other Member States intervened in the proceedings.
In summary, the Court ruled that Article 20 of the Treaty on the
Functioning of the European Union precludes a Member State from refusing a
third country national upon whom his minor children, who are EU citizens,
are dependent, a right of residence in the Member State of residence and
nationality of those children, and from refusing to grant a work permit to
that third country national, in so far as such decisions deprive those
children of the genuine enjoyment of the substance of the rights attaching
to the status of European Union citizen.

[see attached background note for more detailed explanation of the case]

Ireland’s Approach to Implementing the Judgement

First it is important to state that this judgement applies only where the
child is a citizen. It has no implications whatever for Irish Citizenship
law. The granting of citizenship remains a matter entirely for the
Oireachtas under the Constitution [see background note attached].

Given the importance of the ruling in the Zambrano case, I have decided,
with the support of my Government colleagues, to make a brief public
statement outlining the consideration being given to cases involving Irish
minor dependant citizen children who have a non-national third country
parent or parents.

One possible approach in these matters is to wait for pending cases to be
determined by the Irish Courts and for the Courts to interpret and apply
the Court of Justice ruling. That is an entirely justifiable approach from
a legal standpoint. However in this case the Government has agreed that
there needs to be a more proactive approach and that it should make a clear
statement of its intention to take early action in these cases, insofar as
it is unnecessary to await rulings of the Courts. We should not tie up
the courts unnecessarily or ask eligible families to wait longer than
necessary.

Accordingly I have asked my officials to carry out an urgent examination of
all cases before the courts (approximately 120 at present) involving Irish
citizen children to which the Zambrano judgment may be relevant.

The Government has agreed with my proposal that early decisions in
appropriate cases to which the Zambrano judgement applies be made without
waiting for further rulings of the Courts.

I have also asked my officials to examine the cases in the Department in
which the possibility of deportation is being considered in order to
ascertain the number of cases in which there is an Irish citizen child and
to which the Zambrano judgment is relevant. In addition, consideration will
be given to those cases of Irish Citizen children who have left the state
whose parents were refused permission to remain.

This initiative is being taken in the best interests of the welfare of
eligible minor Irish citizen children and to ensure that the taxpayer is
not exposed to any unnecessary additional legal costs.

Background information

The Zambrano judgment applies EU law to certain situations which had
previously been considered to be internal to a Member State and to be
regulated by national law, not EU law. Indeed, all the Member State
Governments which submitted observations to the European Court of Justice
in the Zambrano case, and the European Commission, submitted that the
provisions of European Union law referred to by the Belgian court in its
reference to the European Court of Justice were not applicable to the
dispute in the main proceedings. However, the Court of Justice ruled
otherwise.

Other intervenors in the case were Germany, Austria, Denmark, Netherlands,
Poland, Greece and the EU Commission. All intervenors including the
Commission were in agreement that this was a matter of national competence.
The Court did not support this argument. The Court ruled as follows.

“As the Court has stated several times, citizenship of the Union
is intended to be the fundamental status of nationals of the
Member States.

In those circumstances, Article 20 TFEU precludes national
measures which have the effect of depriving citizens of the Union
of the genuine enjoyment of the substance of the rights conferred
by virtue of their status as citizens of the Union.

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 a refusal to
grant such a person a work permit, has such an effect.

It must be assumed that such a refusal would lead to a situation
where those children, citizens of the Union, would have to leave
the territory of the Union in order to accompany their parents.
Similarly, if a work permit were not granted to such a person, he
would risk not having sufficient resources to provide for himself
and his family, which would also result in the children, citizens
of the Union, having to leave the territory of the Union. In those
circumstances, those citizens of the Union would, as a result, be
unable to exercise the substance of the rights conferred on them
by virtue of their status as citizens of the Union.

Accordingly, the answer to the questions referred is that Article
20 TFEU is to be interpreted as meaning that it precludes a Member
State from refusing a third country national upon whom his minor
children, who are European Union citizens, are dependent, a right
of residence in the Member State of residence and nationality of
those children, and from refusing to grant a work permit to that
third country national, in so far as such decisions deprive those
children of the genuine enjoyment of the substance of the rights
attaching to the status of European Union citizen”.

Citizenship

The judgement has no implications in terms of eligibility for Irish
citizenship.

Prior to the 2005 Citizenship Referendum, any person born on the island of
Ireland was entitled to irish citizenship. Since the referendum, where a
child is born in Ireland to non-national parents, one of those parents must
have been lawfully resident in Ireland for 3 out of the previous 4 years,
other than as an asylum seeker or a student, inorder for the child to
acquire Irish citizenship.

Children may also apply for naturalisation in their own right in certain
circumstances.

Bron: http://www.merrionstreet.ie/index.php/2011/03/statement-by-minister-for-justice-equality-and-defence-mr-alan-shatter-td-on-the-implications-of-the-recent-ruling-of-the-court-of-justice-of-the-european-union-in-the-case-of-ruiz-zambrano/?cat=12



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