Immigration barrister Cathal Malone turns on his laptop and starts searching for a client’s documents.
“I’m gonna pull up the actual case file just so that I can get the exact details,” he said, looking at the screen.
His client is an Irish citizen who sought asylum from Iraq 20 years ago and still carries a bullet lodged deep in his chest.
“It was during [a] Kurdish-Iraqi conflict. He was shot in the chest,” said Malone, reading from his laptop screen.
Doctors in Ireland have been unable to help, Malone says. The bullet sits too close to the man’s vital veins and organs. “All the medical advice is that it wouldn’t be safe to operate.”
Now a part of the man’s body, the metal shot causes him chronic pain and breathing difficulties, says Malone, which is why he can’t work and relies on disability payment to get by.
It also means he hasn’t been allowed to reunite with his wife.
When the man applied to bring her over under the route for Irish citizens and people from outside of the European Economic Area (EEA) to bring close family members to live with them, the Justice Department said no.
His client couldn’t meet conditions around money and social welfare, said Malone, which make it almost impossible for disabled people like him, who can’t work, to reunite with their family members.
A spokesperson for the Department of Justice said that the department recognises that people reuniting with family contributes to their integration in the state. “However, economic considerations are also a very necessary part of family reunification policy,” they said.
Two Big Barriers
Malone’s client can’t meet two conditions, the barrister says.
One that says he has to earn enough to hit a cumulative €40,000 threshold over three years. (This lower income limit only applies to Irish citizens who want to bring a non-EEA partner. Non-EEA migrants on Stamp 4 immigration permits must earn at least €30,000 a year to afford family reunion).
And another, “that you cannot have been wholly or predominantly reliant on social welfare in the three years prior to the date of your application”, says Malone.
The client appealed the refusal, arguing mainly that his disability made it impossible for him not to be reliant on social welfare. So the minister for justice waived that condition, says Malone.
But the minister still said that the man must satisfy the financial condition. Which is nearly impossible for him to do given he can’t work at all, Malone says.
A spokesperson for the Department of Justice said that people who get disability allowance can still work, and the disability allowance counts towards the €40,000 income threshold.
The non-EEA family reunification policy document says that one’s earnings counting toward the income limit should be beyond social welfare benefits though.
Wendy Lyon, partner and solicitor at Abbey Law, says that it’s all very confusing because the policy document fails to address issues around disability and disability payment.
Repeated policy shift on the issue, in the absence of written guidelines, is creating problems, she says.
“First they were refusing people who were on [disability allowance], then they stopped and said people on [disability allowance] wouldn’t be subject to income thresholds,” Lyon says.
“Now they say people on [disability allowance] are subject to income thresholds but not to the requirement not be reliant on state benefits,” she says.
A 2021 High Court judgment says that Justice Department has changed its policy to count disability payment towards meeting the income limit, referencing a response to a parliamentary question from 2014.
The latest non-EEA policy document was released in 2016, two years after the then-minister-for-Justice Fine Gael’s Frances Fitzgerald announced the policy shift in the Dáil. But the policy document still fails to reflect the change.
Malone is challenging the Department of Justice on this in the High Court.
“The minister’s argument is something along the lines of, ‘Well, prove to me that you couldn’t do any work,’” says Malone.
“You feel like grabbing the minister and shaking her and saying, ‘He’s got a bullet in his chest,’” he says, shaking his hands in the air.
There is no dispute as to his injury and the impact, says Malone. “I mean it’s also the reason why he was granted permission to remain in the first place, that this man is disabled because of the bullet that is in his chest.”
That there are different rules for different groups makes little sense, Malone says.
If a disabled citizen of any other country in the European Union wanted to have their spouse join them in Ireland, they wouldn’t face the hurdle of financial requirement, he says.
“Because the European law wouldn’t allow it. We let people in under what we call EU Treaty Rights and the state doesn’t collapse,” Malone says. Yet Irish citizens and those from non-EEA countries face more hurdles.
The spokesperson for the Department of Justice said that economic issues aren’t the sole consideration.
But “the state cannot be expected to subsidise the family and the sponsor must provide for their family members if they are to be permitted to come to Ireland”, the spokesperson said.
They did not respond to a query asking why it is always up to the person in the country to prove they can provide for the one coming over, instead of considering how family members may contribute.
Malone says his client’s wife would have had the right to work if granted a visa.
But the minister looks at whether the person who brought you can support you, he says. “Not that you may be able to support them, you know, that’s just not taken into consideration.”
Eoghan McMahon, a solicitor at the law firm McGrath McGrane LLP Solicitors, repeats Lyon, the other solicitor’s concern, that one trouble with the policy document for family reunification is that it doesn’t mention disability allowance at all.
There is no guidance on how it is taken into account, he says. “It basically assumes that the person applying is not going to be on disability allowance.”
McMahon has had disabled clients unable to bring over their loved ones. The lack of guidance in the policy means he can’t offer them clear answers, he says.
“If a client asked me today do I have a chance to be successful in my application, I can’t really give them an answer,” said McMahon.
Malone, the immigration barrister, is hopeful of beating the department in court and winning his client the right to reunite, he says.
But a December 2021 High Court judgment shows that disabled people’s chances of winning family reunification are slim.
In AZ v. Minister for Justice, an Irish citizen born in Iraq – who had come to Ireland to seek asylum as an unaccompanied child – tried to bring his wife over. He was refused on account of being on disability allowance and not working.
A workplace injury had left him unable to work, and he qualified for the disability payment in February 2018.
“It was not reasonable to expect the married couple to reside together in Iraq, due to the security situation in that country,” his solicitors had said.
The minister for justice had said that the man had visited Iraq, met his wife there and visited her again. Nothing bad had happened, she said.
“This would indicate there are no restrictions on Mr. Z travelling to Iraq to visit and maintain the relationship with his wife in the same manner that it developed,” she had said.
The minister also argued that using her discretion to waive the financial requirement for AZ could set a bad precedent, and requests could snowball.
The court sided with the minister. Ms Justice Tara Burns said that the applicant “was in a difficult financial position” even before his workplace injury.
He couldn’t afford to bring his wife over even if he wasn’t injured and not reliant on disability payment, Ms Justice Burns said in her ruling.
“It is in the interests of the State that sponsors who bring family members to this State should be in a financial position to ensure that the family members do not cause a burden on the State,” the ruling says.
She said the man’s situation didn’t count as “exceptional circumstances” that could prompt the minister to waive the financial condition.
On the minister’s suggestion of maintaining a long-distance marriage with trips to Iraq in-between the judge said that “it was open to the Applicant to travel to Iraq in light of his earlier visits there”.
Malone says he knows that the department might also use his client’s visits to Iraq against him.
But just because some former asylum-seekers can go back and keep a low profile in their places of birth for a few months doesn’t mean they can lead happy fulfilling lives there, he says.
“The point is that sometimes the characteristics that make you vulnerable isn’t something that’s immediately obvious,” said Malone.
A gay man could lead a normal life in Iran so long as he hides his queerness, he said. That doesn’t mean the country is safe for him to bring up a family.
McMahon, the solicitor at McGrath McGrane, says that if things were not so dependent on the minister’s discretion and set out clearly, life would perhaps be easier for disabled people.
“It just isn’t built into the policy, you know,” says McMahon. “Someone on disability allowance isn’t even an afterthought in the document.”
A spokesperson for the Department of Justice couldn’t give figures on how many people on disability allowance tried to reunite with family members under this route in the past five years and how many succeeded.
“We do not maintain statistics in this manner,” they said.
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