Change in procedure regarding return first country of entry

In a recent judgement of the ECJ it was decided that an asylum seeker may not be sent back to the first EU member state he landed in from outside the EU if he risks being subjected to inhuman treatment there.

This means asylum seekers in Ireland who landed in another country first may not be sent back to the first country if they risk suffering inhumane treatment there.

Under the current regime the state in which the asylum seeker first arrived was considered responsible for dealing with their asylum application. This was known as the "Dublin II" regulation.

The ECJ ruled that Belgium should not have sent an person back to Greece where he had already been mistreated during the asylum process, as Greece was unable to guarantee that his human rights would not be infringed.

In a subsequent hearing, the court was asked by the UK and Ireland to rule on two cases where asylum seekers had arrived from Greece and had objected to being sent back to Greece on the basis that the asylum regime in Greece was inadequate with regards to its human rights protections.

In the Irish case a number of applicants, each of which originated fro different countries. They all initially arrived in Greece where they travelled on to Ireland where they claimed asylum. They resisted their return to Greece and claimed the procedures for asylum seekers there were inadequate.

In the UK case, an asylum seeker had been arrested in Greece before making an asylum application and removed to Turkey, where he was held in in conditions which were such that his human rights were breached. He escaped from detention in Turkey and travelled to the United Kingdom where he claimed asylum.

The Irish and English Courts asked the ECJ whether the State should verify that the receiving State (in this case Greece) will uphold the applicant's fundamental human rights. If the State finds that these rights will not be protected, the Courts asked should the State then assume responsibility of the asylum seeker's application?

The judgement stated that States may no longer assume that fundamental rights will be upheld by the State of first entry.

Zambrano Case

Many non-EU parents of Irish-citizen children have been granted residency in Ireland since a landmark European court judgment last year.

The Court of Justice of the European Union ruled last March that the non-EU parents of EU-citizen children must be allowed to live and work in that EU state. this judgment is known as the 'Zambrano Case'

Following the European ruling some people have been allowed to re-enter the state after receiving a deportation order.

According to the department of Justice at least 20 Irish citizen children have left the State in the company of their parents as a result of deportations since 2005.

The Zambrano Case is so called as it is the the surname of a Colombian couple who brought the case to the European court. The judgment stated that the non-EU parents of EU citizen children must be allowed to live and work in that EU State.

The Zambrano Case does not affect the criteria of eligibility for Irish citizenship, including the changes following the 2005 citizenship referendum. Since this referendum, a child born within the State was entitled to Irish citizenship only of one of the parents has lawfully resided within the State for at least three of the previous four years and that person is not within the state as a student or a person seeking asylum.

Road Traffic Law: Disqualification & Endorsements

A brief note on the different categories of Disqualification and Endorsements which apply in Irish road traffic law: Disqualification

Three types of disqualification are applied by the Irish Courts:

Consequential Disqualification: where an individual is disqualified as a consequence of a particular offence being committed. Examples of consequential disqualifications include those for drink driving and for driving without insurance offences.

Special Disqualification: where a member of An Garda Síochána or the appropriate licensing authority applies to the Court for disqualification where he/she believes a person to be unfit to drive a motor vehicle due to the physical/mental disability or evidence of incompetence to drive any vehicle or any class of vehicle.

Ancillary Disqualification: where a judge acts at his/her discretion to disqualify a person from driving for the commission of an offence for which consequential disqualification (above) does not apply.

Endorsement

An endorsement is a stamp placed on the licence of a defendant by the motor taxation office local to the defendant. The endorsement will generally remain for three years from the date of the stamp. A court may order an endorsement with or without a disqualification. Where a disqualification order has been made (with the exception of special disqualification), the Court will endorse the licence. Second or subsequent endorsements may lead to disqualification and may also lead to higher insurance premiums for the holder. holder.

Damache Case Update

In relation to the recent blog regarding the Damache v DPP [2012] decision and search warrants, as expected the effect on already decided cases will likely be minimal.

In DPP v Thomas Hughes [2012] (7 July 2012) a convicted person challenged his conviction on the basis that evidence used to convict him had been obtained under legislation which had subsequently been found unconstitutional in the Damache case.

The Court of Criminal Appeal rejected the applicant's appeal on the basis (amongst other reasons) that he had pleaded guilty during his trial. The State did not have to rely on the evidence which it had obtained by the means which were subsequently found unconstitutional.

This is in line with previous decisions such as the high profile decision of C.C. v Ireland [2006] where a convicted person sought to have the decision overturned following a subsequent finding that the legislation outlining the offence was inconsistent with the Constitution. The court found that as the accused had not sought to challenge the provision in his previous trial he was not entitled to rely on it at a later stage

Unconstitutional Search Warrant Leads to Quashed Conviction

A recent decision of the Supreme Court regarding certain search warrants has forced the government to introduce new legislation.

At issue was the constitutional protection afforded to the citizen's home under Article 40.5 of the Constitution. Article 40.5 states that: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with the law.". The Supreme Court found that the legislation which allowed a Garda Superintendent to issue a search warrant under s.29 of the Offences Against the State Act 1939 was unconstitutional.

The Court stated that a high standard of independence was required of the person issuing a warrant to search a person's home. In the case of a member of An Garda Síochána issuing a warrant, this independence may not be guaranteed in some circumstances, for example where a person who issues the search warrant is conducting the same criminal investigation.

In this particular case, the Superintendent in charge of the investigation issued a warrant to search the home of a suspect. The Court held that at the Garda investigating the matter was not sufficiently independent to issue such a warrant. The proper person to issue the warrant was a person independent of the investigation authority, a district Court Judge for example.

The decision may have important implications for several cases currently before the courts where the same type of search warrant was issued and evidence was gathered during that search. Where criminal cases are fully concluded, it is likely that this decision will only be relevant where the convicted person challenged the search warrant during the original proceedings.

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