Entries by berkeleysolicitors

CURRENT SYSTEM FOR APPLICATIONS FOR STAMP 4 FOR NON VISA REQUIRED DE FACTO PARTNERS OF IRISH CITIZENS

This article will highlight the current system for applications for Stamp 4 residency for de facto partners of Irish citizens living together in Ireland. In particular, those applicants who are not required to obtain a visa to enter Ireland.

At present, our office is currently experiencing an increase of clients seeking advice in relation to decisions refusing their de facto partners application, based on irrelevant considerations.

THE COURT OF APPEAL HAS ISSUED TWO JUDGMENTS WHICH HAVE FAR REACHING CONSEQUENCES FOR APPLICATIONS UNDER SECTION 4(7) OF THE IMMIGRATION ACT 2004

Luximon v. Minister for Justice & Equality (Court of Appeal – 14/12/2016)

Balchand v. Minister for Justice & Equality (Court of Appeal – 15/12/2016)

The Court of Appeal (Finlay Geoghegan J, Peart J & Hogan J) delivered important judgments on 15th December 2016 in the cases of Luximon & Ors -v- The Minister for Justice & Equality [2016] IECA 382 and Balchand & Ors -v- The Minister for Justice and Equality [2016] IECA 383.

These two cases concerning the question of whether, in determining an application for permission to remain by a non-EEA national, made pursuant to section 4(7) of the Immigration Act 2004, the Minister is obliged to consider the applicant’s rights to the respect for private & family life as guaranteed under Article 40.3 of the Irish Constitution and Article 8 of the ECHR.

The Court of Appeal held that the High Court Judgment of Barr J in Luximon (20 March 2015) IEHC [2015] 227was correct in finding that there was such an obligation on the Minister.

These judgments would appear to mainly affect people who are resident in Ireland on student permission or those who have overstayed their student permission, specifically those who wish to continue to live and work in Ireland after their student permission expires.

INTERNATIONAL PROTECTION ACT 2015- NOTICE OF COMMENCEMENT

The Irish Naturalisation and Immigration Service (INIS) have issued an information notice for applicants for family reunification. The notice advises that the International Protection Act 2015 (2015 Act) will be commenced by the Tánaiste and Minister for Justice and Equality on 31st December 2016. The procedure and statutory framework for the assessment of applications for family reunification for recognised refugees is set to be overhauled by the commencement of this Act.

It is important for family reunification applicants to note that once their application has been received by the Minister for Justice and Equality before commencement of the 2015 Act, these applications will be processed under the existing legislation, that is the Refugee Act 1996.

New applicants or those considering making an application for family reunification should be aware that any applications for family reunification received by the Minister after commencement on 31st December 2016 will be processed under the 2015 Act.

In cases where an application is made before commencement of the 2015 Act and permission for family reunification is granted after the Act’s commencement, the approved family members will be given permission to enter and reside in the State for a period of no less than one year, provided the sponsor’s permission is in force and provided the sponsor is entitled to remain in the State.

LONG STAY VISA APPLICATIONS AND THE FLEXIBILITY OF THE INIS POLICY DOCUMENT ON FAMILY REUNIFICATION, DECEMBER 2013

The INIS Policy document on Non-EEA Family Reunification, published in December 2013 provides a comprehensive statement on Irish national immigration policy in the area of family reunification. The policy lays out a number of overarching principles to the Minister’s assessment of applications for Non-EEA family members to live and reside with their Irish or legally resident family members in Ireland, as well as setting a number of specific thresholds relating to finance, income and dependency.
We submit that this policy should be applied in a fair and flexible fashion, taking account of the salient facts and circumstances of the particular applicant and their family members. The Executive Summary to the policy itself states “Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case”. “It is intended that family reunification with an Irish citizen or certain categories of non-EEA persons lawfully resident in the State will be facilitated as far as possible where people meet the criteria set out in this policy although of course each case must be considered on its merits”.

UPDATE ON VISA APPLICATIONS PURSUANT TO DIRECTIVE 2004/38/EC AND THE EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGULATIONS 2015

We have recently commented on the case of Mahmood and Atif v Minister for Justice and Equality, judgment delivered on 14th October 2016.

In this case, Justice Faherty found that a processing time in excess of 6 months to process a visa application submitted by the spouse of an EU Citizen to be an unlawful breach of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. Justice Faherty ordered that the visa application in question be determined within a six-week period.

We are still working on a large number of cases involving very substantial delays in the processing of visas for family members of EU Citizens under the Directive and Regulations. Many of our clients have waited in excess of one year and have still not received a decision, or even an update on the status of the visa applications for their family members. We submit that such waiting times are a clear and inexcusable breach of the Directive and Regulations 4 and 5 of the 2015 Regulations.

APPLICATIONS FOR EU FAM RESIDENCE CARDS FOR PERMITTED FAMILY MEMBERS OF EU CITIZENS

Applications for EU FAM Residence cards for permitted family members of EU Citizens, be it partners, brothers, sisters or any other family members are submitted to the EU Treaty Rights Division of the INIS under the provisions of Article 10 of Directive 2004/38/EC and Regulation 7 the European Communities (Free Movement of Persons) Regulations 2015.

Our office is of the opinion that there is no distinction in Article 10 or Regulation 7 between the time frame in the issuance of a decision on the application for permitted or qualifying family members. We quote from Article 10:

“The right of residence of family members of a Union citizen who are not nationals of a member state shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately”.

APPLICATIONS FOR NATURALISATION AS AN IRISH CITIZEN

INIS have published a new Application Form 8 which should be used for all new adult applications for naturalisation based on five years reckonable residency or three years reckonable residency based on the spouse or civil partner of an Irish citizen.

The updated Form 8 can be downloaded on the INIS website, by following the link below:

http://www.inis.gov.ie/en/INIS/Form%208%20Ver%205.5%20Aug%2016.pdf/Files/

Form%208%20Ver%205.5%20Aug%2016.pdf

THE DECISION OF MAHMOOD AND ATIF

The judgement in the case of Mahmood and Atif v Minister for Justice and Equality was delivered on 14th October 2016.
Mr Mahmood is a British national, his wife Ms Atif is a citizen of Pakistan. Mr Mahmood and Ms Atif are legally married spouses. In and around June 2015 Mr Mahmood and Ms Atif submitted an application for a visa for Ms Atif to accompany Mr Mahmood to Ireland pursuant to Directive 2004/38/EC and then, the European Communities (Free Movement of Persons) Regulations 2006. Ms Atif submitted her application and supporting documents through the VFS centre as required on 9th July 2015.

THE COMPLICATION OF CHANGING IMMIGRATION STATUS – THE LUXIMON CASE

The judgement of the Court of Appeal in the case of Danibye Luximon & Another v The Minister of Justice and Equality,heard in June 2016, remains pending. The judgement is eagerly awaited as it is expected to clarify the legalities around the Minister’s policies on change of status applications.

BREXIT – BRITISH CITIZENS AND EU FREE MOVEMENT RIGHTS

The UK’s departure from the EU is now a fact, and Theresa May has recently confirmed the UK will trigger the process to leave the EU under Article 50 of the Lisbon Treaty as early as March 2017. This would mean that it looks likely the UK’s departure from the EU would happen around March 2017.