Note on the Common Travel Area

The High Court has recently stated that only UK nationals and Irish citizens may avail of the reduced border restrictions of the Common Travel Are. In practice this means that non-nationals travelling between Ireland and the UK, including the North of Ireland, may face difficulties returning to the South of Ireland

Often a person's right to remain in Ireland is conditional upon that person remaining within the State. This may become an issue where a person unwittingly crosses the border to the North of Ireland. On return to the South the person may be required to re-apply for permission to land or be in the State.

The case involved a Bolivian couple who had travelled to the North of Ireland onwards to Scotland and then to London. They had been given permission to remain in Ireland for one month from their first arrival in Dublin

The Court noted that there appears to be a common misconception that foreign nationals could also benefit from the Common Travel Area, which, according to the court, not the case. The couple were stopped by the UK authorities in Scotland and sought to deport them, they asked the Irish authorities whether they were entitled to re-enter Ireland which the Irish authorities said they were not.

The Court noted that the couple had probably made an innocent mistake.

New legislation for Co-habiting Couples.

New legislation was introduced early last year to a lot of publicity as it introduced civil partnerships for same-sex couples. This legislation also included a number of very important changes to the law which had applied to couples, both heterosexual and same-sex, who live together for a period of time and then separate. This part of the legislation applies to a much greater proportion of society but was greeted with much less publicity, despite the fact that it may have a much greater affect on people's lives without them realising it.

Prior to the introduction of this legislation, co-habiting couples had no legal obligations to each other on separation unless they purchased property together. This new law has completely changed the situation for co-habiting couples as, once they reach the time threshold, a number of potential financial obligations accrue. This is particularly the case where the couple may have children and one of the parents, usually the mother, stays at home, to the detriment of her earning potential, to look after the children. Prior to the new law being enacted, the father only had an obligation to provide for the children of the couple if the relationship breaks down but now he may also face providing a level of maintenance for his ex-partner, a totally new departure in Irish law. The legislation allows the Courts to make a number of orders, similar to those where the couple was married, in relation to property, pensions and maintenance on separation.

Strasbourg Court Rules Against Ireland for Delaying Criminal Prosecution by over 13 years

The European Court of Human Rights has just delivered an important decision rebuking Ireland for violating the right of a suspect to a trial within "a reasonable time." In the case of O v Ireland, a man waited 13 years and 7 months until he was eventually acquitted in a jury trial. In those 13 years and 7 months, there were two aborted jury trials and a lengthy dispute over the availability of psychiatric records and witnesses. The Strasbourg Court ruled that this period of time was "excessive" and a violation of Article 6 of the European Convention of Human Rights. However, this is not the first time that the European Court of Human Rights ruled that Ireland breached the Article 6 right to a fair trial within a reasonable time. The Strasbourg Court specifically referred to Ireland's past record in Barry v Ireland and its recent Grand Chamber decision on 10 September 2010 in McFarlane v Ireland. It concluded that Ireland was once again in breach of its obligations to ensure trials against suspects moved speedily.

The case of O v Ireland raised some very striking and controversial issues. How do you remedy a breach of human rights? The man had argued that he was entitled to an order stopping any trial because the delay was so very long. Ireland had argued that the man should have sought damages in an Irish court but that his trial should proceed. This is not a very attractive argument. Are human rights subject to a price tag? In the wrong hands, a European State could breach human rights in the full knowledge that the taxpayer would ultimately fund the breach of human rights with a sum of money. The European Court of Human Rights rejected this argument and concluded that damages were not "an effective remedy."

Most reasonable people agree that waiting 13 years and 7 months for a trial is far too long. Lawyers are familiar with the adage that 'justice delayed is justice denied.' However, we asked Michael Dillon BL who was counsel in the case what this actually means. Why is justice denied if it is delayed? With the passage of too much time, crucial witnesses may die or disappear as they did in O v Ireland. Witnesses may become unavailable to prove a defence alibi due to the vagueness or the imprecision of their recollection. Witnesses who are available could have faulty or unreliable memories. Indeed, loss of memory does not always reveal itself as the potent problem that it is to the guarantee of a fair trial. A lengthy trial also affects the suspect in a variety of ways. The suspect may have lost his or her liberty in lengthy pre-trial detention. He or she lives with a sense of uncertainty together with the social stigmatisation of being an accused. This typically causes further significant pressure on family and social life which is exacerbated by the public nature of most criminal proceedings. In some cases, this stress and anxiety can develop into a psychiatric condition. A criminal suspect may also have incurred financial costs through the loss of work hours and legal costs if denied legal aid.

Finally, it is important to remember that it is a cornerstone of the criminal justice system that a person is innocent until proven guilty of a criminal charge. The right to a trial within a reasonable time guaranteed by the European Convention of Human Rights means that innocent people should not wait excessively before that cloud of suspicion is removed.

The European Court of Human Rights has no power to order Ireland to stop a jury trial. It awards damages for a breach of human rights. The process of bringing a case to Strasbourg results in a money award. Mr. O submitted his application to the Strasbourg Court in 2007 but while he awaited this decision vindicating his human rights, his jury trial took place in 2010. What would have happened had the Strasbourg Court reached its decision prior to the jury trial? Would the prosecution have set down the jury trial notwithstanding the breach of human rights? How would an Irish Court have dealt with the Strasbourg case in the very trial in which Strasbourg has ruled that Ireland has breached human rights and ruled that damages are not effective? Perhaps the answers to these vital questions will be provided another day.

New legislation for Co-habiting Couples.

New legislation was introduced early last year to a lot of publicity as it introduced civil partnerships for same-sex couples. This legislation also included a number of very important changes to the law which had applied to couples, both heterosexual and same-sex, who live together for a period of time and then separate. This part of the legislation applies to a much greater proportion of society but was greeted with much less publicity, despite the fact that it may have a much greater affect on people’s lives without them realising it. Prior to the introduction of this legislation, co-habiting couples had no legal obligations to each other on separation unless they purchased property together. This new law has completely changed the situation for co-habiting couples as, once they reach the time threshold, a number of potential financial obligations accrue. This is particularly the case where the couple may have children and one of the parents, usually the mother, stays at home, to the detriment of her earning potential, to look after the children. Prior to the new law being enacted, the father only had an obligation to provide for the children of the couple if the relationship breaks down but now he may also face providing a level of maintenance for his ex-partner, a totally new departure in Irish law. The legislation allows the Courts to make a number of orders, similar to those where the couple was married, in relation to property, pensions and maintenance on separation.

Urgent Update: Student Probationary Extension Scheme

The Irish Naturalisation and Immigration Service has announced an extension for certain non-EEA nationals registered as students who have exceeded the 7 year time frame.

A 2 year probationary extension is being made available to students who have been resident within the state and registered as a student before 1st January 2005.

At the end of the 2 year probationary period the student may be eligible to apply for a more permanent status.

During the 2 year probationary period the following restrictions will apply:

  • The eligible student will not be required to be registered or enrolled in an academic course of study.
  • The eligible student will be permitted to work for a maximum period of 40 hours per week without being required to hold a work permit.
  • The eligible student will be required to maintain private medical insurance.
  • The eligible student will be required to reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.)
  • The eligible student will not be permitted to apply for reunification with family members who are resident outside the State.
  • The eligible student must be of good character and must demonstrate that they are law abiding.

Conclusion of the Probationary Period

At the conclusion of the two year probationary period the eligible students can apply for a Stamp 4 permission to reside in the State. Students will be required to -

  • Demonstrate that they have resided in Ireland during the probationary period, and
  • Submit a valid P60 certificate which has been issued during the two year probationary period, and
  • Reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.), and
  • Be of good character and not be convicted or charged with any criminal offences, and
  • Pay an appropriate immigration levy.

    We feel that the probationary period will be of particular interest to Chinese nationals who may wish to extend their time within the state or may wish to reside on a more permanent basis, although the scheme will be open to all non-EEA nationals.

    If you require advice regarding the INIS 2 year probation scheme or if you have a general immigration law query, contact us to arrange a consultation.

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