COURT OF APPEAL: MINISTER ERRED IN ASSESSMENT OF DEPENDENCY AND MEMBERSHIP OF A HOUSEHOLD OF AN EU CITIZEN IN PERMITTED FAMILY MEMBER ASSESSMENTS

On the 8th January 2021, the Court of Appeal delivered Judgment in the matter of Shishu & Anor -v- Minister for Justice and Equality.

The decision of Mr Justice Barrett of the High Court was upheld, in finding against the Minister (the Appellant) in her determination of Mr Shishu’s (the Respondent) application for his brother’s residence in the State on the basis of dependency and membership of an EU citizen’s household, where the EU citizen is validly exercising EU Treaty Rights in the State. The facts of the case are noted below.

Mr Shishu, a Bangladeshi national, became naturalized as a UK citizen in 2009. Mr Shishu’s brother, Mr Miah, also a Bangladeshi national, travelled to the UK in 2013 on a visitor visa. While residing in Bangladesh, prior to traveling to the UK, Mr Miah was financially supported by Mr Shishu.  From 2013 to 2016, Mr Miah resided in the UK, with his brother, Mr Shishu and Mr Shishu’s wife. Mr Miah was not permitted to work and was fully supported financially by Mr Shishu.

In 2016 Mr Miah moved to Ireland and was followed shortly thereafter by Mr Shishu, where they resided together. Mr Shishu continued to financially support Mr Miah in Ireland. In June 2016, an  application for an EU residence card was made by Mr Miah on the basis that he was dependent on Mr Shishu. The application was rejected at first instance, and a subsequent appeal was also rejected on the grounds that Mr Miah failed to provide satisfactory evidence of his dependence on his EU citizen brother. The Minister determined that Mr Miah neither proved dependence on his EU citizen brother, nor that he was a member of the same household of his brother.

Solicitors for the applicants sought to judicially review the decision of the Minister before the High Court, leave to do so was granted. Mr Justice Barrett in his High Court determination looked to the interpretation of the term “household” in S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015 (the 2015 Regulations), having regard to German and Greek translations and the European Court of Justice decision in CILFIT v Ministry of Health (Case 238/81). Mr Justice Barrett found that the Minister had acted unreasonably and in breach of fair procedures in her determination that Mr Miah had not provided sufficient evidence of his dependence on his brother, Mr Shishu.

Court of Appeal Judgment

The Court of Appeal affirmed the decision of the High Court to grant certiori, directing that the matter be remitted to the Minister for fresh consideration.

Mr Justice Haughton, in his Judgment noted that weight should have been given to the interpretation of the term “household” in our own official languages of Irish and English and that Mr Justice Barrett had “erred in adopting his ‘looser’ interpretation of ‘member of the household’ without reference to any domestic caselaw from Germany, Spain or Greece, or expert evidence as how their versions of the Citizens Directive are – 91 – interpreted in their domestic law”

Mr Justice Haughton noted “that the decision-makers in the Initial Decision and the Impugned Decision failed to identify or apply the correct test of dependency”. The Judge noted that the process to be followed by the Minister in determining applications for “permitted family members”, under Regulation 5 of the 2015 Regulations, making reference to the Supreme Court analysis in Pervaiz -v- Minister for Justice & Equality & ors  as “not so much two stages but a series of questions with which the Minister must engageas the correct form of analysis.

Mr Justice Haughton further noted that he did “not accept that in this case the Minister was in breach of fair procedures in failing to adopt procedures which would have enabled Mr. Miah to know what evidence he was required to adduce in order to establish ‘dependency’ or ‘membership of the household’.

Of note, Mr Justice Haughton made reference to the Subhan and Ali v the Minister for Justice and Equality case which has recently been referred to the Court of Justice of the European Union (CJEU) “a fuller definition of ‘members of the household of the Union citizen’, or criteria that should be considered when deciding who is such a member, with application across the EU, must await the outcome of the recent reference by the Supreme Court to the CJEU in Subhan, there are basic elements to the definition that follow from our official English language wording of Article 3(2)(a) that enable me to reach a decision on the facts of this case.”

This decision is a welcome decision providing further clarity in the area of law for practitioners and applicants alike. We await with anticipation the CJEU decision in the Subhan and Ali referral, in which Berkeley Solicitors is representing the applicants.

Should you wish to discuss an application for an EU Residence Card, please contact our office, and we would be happy to arrange a consultation with one of our solicitors.

THE IRISH TIMES REPORTS ON THE SUPREME COURT REFERENCE TO THE COURT OF JUSTICE OF THE EU

In an article of the 21st December 2020, the Irish Times reported on an important decision of the Supreme Court in the Subhan and Ali case, in which our office is acting as the solicitors for the appellants.

The Supreme Court delivered judgement on the 21st December 2020, and determined a reference to the Court of Justice of the EU was required in order to seek clarification on the meaning of the term “member of the household of an EU citizen” in the context of EU free movement law.

The Irish Times reported;

The Supreme Court is to ask the Court of Justice of the EU (CJEU) to decide important issues concerning who is a permitted member of a “household” of an EU citizen for the purpose of exercising free movement rights….

…..The five-judge Supreme Court agreed to hear a further appeal after the Court of Appeal dismissed their challenge. The appeal centred on the meaning of what it is to be a member of an EU citizen’s household as a matter of Irish and EU law and on the definition of a “permitted family member” for the purpose of the relevant free movement directive and regulations.

 

Giving the court’s judgment on Monday, Mr Justice Peter Charleton said the determination of that issue required the court to make a reference to the CJEU.

 

The Supreme Court reference to the Court of Justice is significant not just for Ireland, but for all the countries within the territory of the EU. We hope the Court of Justice will take this opportunity to bring clarity to this area of law, thus assisting many other EU citizens in their applications for family reunification.

 

We will post further updates regarding the reference to the Court of Justice in due course.

 

The Irish Times article can be read here;

 

https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-asks-eu-court-to-decide-issues-affecting-free-movement-rights-1.4443061

 

Further information regarding the Subhan and Ali case can be read in our previous articles here;

 

https://berkeleysolicitors.ie/supreme-court-to-make-a-reference-to-the-cjeu-in-subhan-and-ali-test-case/

 

 

Berkeley Solicitors

SUPREME COURT UPHOLDS CONSTITUTIONALITY OF PROVISIONS OF THE INTERNATIONAL PROTECTION ACT 2015, LIMITING RIGHTS TO FAMILY REUNIFICATION FOR REFUGEES

On the 8th of December 2020, the Supreme Court gave Judgements in the cases “A -v- The Minister for Justice and Equality (MJE) & Ors”, “S and S -v- MJE & Ors,” and thirdly “I.I (Nigeria) -v- MJE & Ors”.

The “A” and “S” cases dealt with the argument put forward by both applicants that s. 56(9) of the International Protections Act 2015 (the 2015 Act), is contrary to the Constitution of Ireland, and incompatible with the European Convention on Human Rights (ECHR). This Section of the 2015 Act states that a person who is granted Protection in the State (the sponsor), may only make an application for Family Reunification (FRU) for a spouse to join them in the State, in circumstances where their marriage was already in existence, on the date the sponsor made his/her/their application for protection in the State.

The applicant in the “S” case, Mr S, is an Afghan national, who arrived in the State in 27 July 2015, under the Refugee Act 1996. Mr S’s application was granted at first instance, under The Refugee Act 1996. Mr S married the second applicant, in April 2017, and submitted an application for family reunification for his wife to enter and reside in the State, in April 2017. The visa application and subsequent visa appeal were both refused on the basis that Mr S and his wife Mrs S were not married prior to Mr S’s application for protection.

Both the “A” and “S” cases were dealt with together as the legal issues being appealed in each case were similar in nature. The “A” case involved a FRU application made on behalf of an Iraqi Kurd who was granted protection status in the State in December 2016, Mr A subsequently married his now wife. An application for family reunification was refused, as was the subsequent appeal on the basis of the marriage not subsisting prior to Mr A’s application for Refugee status.

The “I” case dealt with whether s 56(8) of the 2015 Act is contrary to the Constitution and incompatible with the ECHR. This section of the Act requires that where an individual has been granted International Protection, they must apply for FRU with a family member within 12 months of their application being successful, with no exceptions.

The applicant in the “I” case is a Nigerian national who was abandoned in Ireland in 2011, at the age of 10. Ms I. was under a care order in the State from June 2012, and was granted Refugee status by Ministerial declaration in September 2014. The applicant reconnected with her mother and sister in 2018, subsequent family reunification applications for both mother and sister were made and refused, as were the following appeals. The grounds for refusal being more than 12 months had passed since Ms I was granted Refugee status in the State, when the applications for Family Reunification were made.

In all three matters, the Supreme Court, in a Judgment delivered by Ms Justice Dunne, found in favour of the Minister. In its determination the Court noted that the doors were not closed to those who have been granted international protection, but who are not eligible for family reunification under the 2015 Act, due to either the 12 month time limit for application, or the requirement that the marriage be in being pre- application for protection. The Court noted that the other option available to those who are in such circumstances, can apply under the 2016 Family Reunification Policy document, where the Minister can exercise her discretion to grant family reunification on the basis of humanitarian grounds.

We have assisted clients previously with making an application for Family Reunification on the basis of the 2016 policy document, by appealing to the Ministers discretion on humanitarian grounds. We have been successful in many of our cases. Should you wish to discuss an application for family reunification in any circumstances, please contact our office, and we would be happy to arrange a consultation with one of our solicitors.

Ms Justice Dunne’s Judgment can be found here.

The Judgement of Mr Justice Charleton can be found here.

NEW IMMIGRATION SCHEME FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS FOLLOWING END OF BREXIT TRANSITIONAL PERIOD

On 23rd December 2020 the ISD published the Minister’s new scheme in relation to Non-EEA Family Members of UK Citizens intending to reside in the State from 1st January 2021 onwards.

The rights of British citizens to reside in Ireland remains unchanged. The rights of family reunification with Non-EEA family members has now changed dramatically.

British citizens who exercised their rights of free movement to Ireland prior to 31.12.20 will continue to hold rights to family reunion equivalent to those provided for by Directive 2004/28/EC and the European Communities (Free Movement of Persons) Regulations 2015.

British citizens who have moved to reside and work in Ireland and who wish to be joined by their Non-EEA family members from 1st January 2021 onwards will have their family members applications considered and assessed under this newly published scheme.

A key point to note is that all applications are to be made from outside of the State regardless of an applicant’s nationality. This is a fundamental difference to applications from family members of Irish and other Non-EEA family members- applicants from “visa required” countries apply for visas whilst remaining outside the State, applicants from “non visa required” countries can travel to the State and make their application for entry at the airport. For non-EEA family members of British citizens, a visa application must be made for visa required nationals and a preclearance application is to be made for non-visa required applicants.

The policy specifically confirms that an applicant currently in the State on visitor permission cannot apply from inside the State for a change to a long-term permission.

Where a non-EEA national holds a separate immigration permission within the State for the purpose of study, work, etc., and subsequently becomes the spouse/civil partner/ de facto partner of a British citizen, a change of status request may be made.

The INIS Policy on Non-EEA Family reunification, last updated in December 2016 continues to apply to the non-EEA family members of Irish citizens and legally resident Non-EEA nationals.

This new policy specifically relates to non-EEA family members of British citizens.

There are no minimum Irish residency requirements for UK citizens seeking to sponsor a specified non-EEA national family member.

Financial thresholds:

For all categories of applications:

In order to sponsor a specified non-EEA national family member, a UK citizen must not have been totally or predominantly reliant on social protection benefits in the State or to equivalent benefits in another State for a continuous period of at least 2 years prior to the application.

Applications involving spouses/ partners only:

The WFP does not apply in the case of a married couple, civil partner / de facto partnership where there are no children and consequently a minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.

Applications involving minor children/ dependent children up to the age of 22 of British citizen or partner/spouse of British citizen:

In addition, the sponsor must have earned a gross income in each of the 3 previous years in excess of that applied by the Department of Social Protection (DSP) in assessing eligibility for Working Family Payment (WFP).

4.6 A sponsor who wishes to reside with their dependent children in the State requires the net assessable income per week for their family size as set out by the Department of Social Protection (DSP) in assessing eligibility for the Working Family Payment, as published on that Department’s website. The sponsor should comply with those limits including with respect to any changes to the WFP as published at (http://www.welfare.ie/en/Pages/Working-Family-Payment-Op.aspx.)

Applications for dependent parents (aged 66 and over)

A sponsor will be required to have earned in each of the 3 years preceding the application, an income after tax and deductions of not less that €60,000 per annum in the case of one parent. €75,000 per annum applies where two parents are involved.

The expectation is that this minimum level of income will be maintained for the duration of any permission granted under this Scheme. Where such income levels are not maintained, permission may not be renewed under the Scheme. At the date of application, the sponsor is also required to show that he/she is capable of earning a sufficient level of income to support his/her dependent family members for the duration of their proposed residence in the State.

Eligible applicants

British citizens moving to Ireland from 1.1.21 onwards no longer have the legal entitlement to apply for entry and residence for their wider dependent Non-EEA family members and members of their households. Eligible family members are specifically listed under the Scheme and the immigration stamp to be granted to the applicant if successful are also outlined:

  • Spouse, (Stamp 4D)
  • civil partner, (Stamp 4D)
  • de factor partner (2 years cohabitation required), (Stamp 4D)
  • minor children, (Stamp 3 up to age of 18, Stamp 4D at age of 18 “upon application”).
  • children between the ages of 18 and 22 in certain circumstances of dependency (also applies to the children of the spouse/ civil partner and de facto partner of British citizen) (Stamp 4D)
  • elderly dependent parents of British citizen or spouse/partner of British citizen (must be 66 years of age of older), (Stamp 0).

The policy is silent on the conditions of Stamp 4D permission and the INIS webpage has not yet been updated to outline the conditions of Stamp 4D permission and any material differences between Stamp 4D and Stamp 4.

Other additional requirements:

There are also additional requirements, not required under the 2016 INIS family reunification policy document, namely the requirement for the applicants to have health insurance in place to commence from the date of entry to the State and the requirement to provide a police clearance certificate for any country resided in for in excess of 6 months over the previous 5 years.

Fees are payable in respect of applications under this scheme, €60 per visa/ pre clearance application and the registration fees of €300 will be applied to successful applicants.

Full details on the scheme can be found via the below:

http://www.inis.gov.ie/en/INIS/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf/Files/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf

http://www.inis.gov.ie/en/INIS/Pages/joining-your-uk-national-family-member-in-ireland

Please get in contact if you or your family are impacted by this new scheme.

FURTHER EXTENSION OF IMMIGRATION PERMISSIONS AND CLOSURE OF BURGH QUAY REGISTRATION OFFICE ANNOUNCED

On 22nd December 2020, the Minister for Justice and Equality published a notice announcing a further temporary extension of immigration and international protection permissions. This extension applies to immigration and international protection permissions to reside in the State that are due to expire between 21st January 2021 and 20th April 2021.

It applies to all persons with a current valid permission, whether pursuant to domestic law or powers of the Minister, or pursuant to Directive 2004/38/EC (the EU Free Movement Directive).

All such permissions are automatically renewed by the Minister to the 20th April 2021.

Any permission that was renewed by the previous notices and was due to expire between 21st January 2021 and 20th April 2021 is automatically renewed by this notice until 20th April 2021.

It was also announced that due to the recently introduced Covid-19 restrictions, the Burgh Quay Registration Office will close from the 23rd December 2020 until further notice. An online system for renewal of permissions commenced in July 2020 for those resident in Dublin. Only first-time applicants are required to attend Burgh Quay in person.

However, significant delays have been reported and many applicants are being forced to wait several weeks or months for their renewal to be processed, or to receive an appointment for first-time registration.

This backlog may ultimately result in applicants having a gap in their immigration permission and falling undocumented, which could negatively impact future renewals or applications for citizenship. This is extremely concerning and intensifies what is already a stressful process for persons seeking to register or renew their immigration permission.

The notice can be read in full here.

If you or a family member have queries about your immigration permission, please do not hesitate to contact our office.

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

On the 21st December 2020, the Supreme Court delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality.

The applicants, who are clients’ of Berkeley Solicitors, issued proceedings to challenge a refusal of the EU residence card on the basis that the applicant was not a member of the household of the EU citizen. For further details on this case, refer to our previous article below:

https://berkeleysolicitors.ie/court-of-appeal-judgment-on-membership-of-the-same-household-in-eu-treaty-rights-cases/

The Subhan and Ali case has become a test case to establish the meaning of the term members of the household of the Union citizen” for the purposes of the Citizens’ Directive, and has a number of cases following it in the High Court holding list.

Mr Justice Charleton, who delivered the judgement on behalf of the Supreme Court today, stated the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another, requires reference to the CJEU.

The questions to be referred to the CJEU are as follows:

  1. Can the term member of the household of an EU citizen, as used in Article 3 of Directive 2004/38/EC, be defined so as to be of universal application throughout the EU and if so what is that definition?
  2. If that term cannot be defined, by what criteria are judges to look at evidence so that national courts may decide according to a settled list of factors who is or who is not a member of the household of an EU citizen for the purpose of freedom of movement?

The reference to the CJEU is welcomed as this should finally bring clarity to who is entitled to a residence card as a member of the EU citizen’s household.

Further updates on this case will be posted here.

NOTICE ON CHANGE OF ADDRESS FOR BERKELEY SOLICITORS

We are delighted to update you that Berkeley Solicitors will soon be moving from our current location at 71 Amiens Street, Dublin 1, to  our new office at

Unit 3 Christchurch Hall, High Street, Dublin 8, D08 P403.

We will move to our new office on Monday the 14th December 2020.

The new office is more spacious, and will be more suitable for us when our new staff join our team in January. It is also more convenient for our regular visits to the Four Courts.

To facilitate the move, we will be closing our office for one day on Friday the 11th December 2020. We will not therefore be available to respond to emails and calls on the 11th of December, but business will return to normal in our new office on Monday the 14th December. We apologize for any inconvenience this may cause.

SCHEME TO REGULARISE STATUS OF UNDOCUMENTED MIGRANTS IN IRELAND CURRENTLY UNDER CONSIDERATION

On 6th December 2020, the Irish Times reported that a scheme to give undocumented migrants residency rights in the State is currently under consideration by the Minister for Justice.

The government has committed to the introduction of such a scheme within the first 18 months in office.

The new scheme is expected to provide a pathway for approximately 17,000 undocumented migrants to apply for lawful residence in the State.

The Minister for Justice stated that this figure included about 3,000 undocumented children, many of whom were born here and have lived all their lives in Ireland.

A policy document setting out a framework for the regularisation of status is likely to be published in the new year.

At present there are no further details on the scheme, though the Irish Times reported that part of the process will include Garda vetting, and that residency will be available to those who are considered to be no threat to the State.

The article can be read in full here.

Please be aware that the scheme is only under consideration at the moment, and no such scheme exists at present so therefore no new application process is currently available.

As soon as the intended scheme is published, we will post a further update on this blog.

If you or a family member have any queries about your immigration status, please do not hesitate contact our office.

NOTICE ON INIS WEBPAGE RE POSITION OF BRITISH CITIZENS AND THEIR FAMILY MEMBERS AFTER THE END OF THE BREXIT TRANSITIONAL DATE ON 31ST DECEMBER 2020

The INIS have placed a notice on their webpage on 19th November 2020 providing a number of clarifications with regards to the immigration position of British Citizens and their family members following 31st December 2020- the end of the Brexit Transitional period.

The notice confirms that “nothing will change for UK nationals living in Ireland” on the basis of the Common Travel Area.

The notice sates:

The protections provided by the Common Travel Area mean that UK nationals living here (and likewise Irish citizens living in the UK), will continue to travel freely, live, work and access education, healthcare and social services in each other’s country, after the UK leaves the EU.

The notice further confirms that UK citizens will not require any document to evidence their lawful residence in Ireland after 31st December 2020.

The notice also states that separate arrangements are bring put in place for non-EEA family members and or dependents of UK citizens where the UK citizen is exercising EU Treaty Rights in Ireland and the family member holds an EU FAM Residence card. It is confirmed in the notice that such persons will continue to hold the same right of residence in Ireland and will not lose any of the rights of residence they currently hold under the EU Free Movement Directive.

The notice states there will be a system of exchanging your EU Fam residence card to a different residence card indicating that your residence is derived from the Withdrawal Agreement. The INIS will operate this system and it is indicated that it will operate under the new online renewal system. As part of this exchange of residence card system, applicants will be required to confirm that the British citizen has been exercising their EU Treaty Rights in the State prior to 31st December 2020 and are continuing to so. You will be asked to return your five-year EU Fam residence card and a new residence card will be issued to you.

There will be a period of one year from 31st December 2020 to 31st December 2021 in which you will be required to submit this application for an exchange in your residence card.

It is great to now receive clarity that the INIS will continue to process applications for EU Fam residence cards that are received prior to 31st December 2020 for Non-EEA family members of British citizens, provided the British citizen has exercised his or her EU Treaty Rights in the State prior to 31st December 2020.

The notice states:  These applications will continue to be processed even if a decision is not made until after 31 December 2020.

Therefore, it appears that such applications, if successful should be issued with a residence card issued under the Withdrawal Agreement once their application is decided, rather than the EU FAM Residence card.

The notice also repeats an earlier notice of the INIS that a new scheme will be introduced for UK nationals who come to Ireland after the 31st December 2020 and wish to bring their non-EEA Family members with them, with details of that scheme to follow.

It therefore appears that British citizens who have exercised their right of free movement to Ireland prior to 31st December 2020 will still be in a position to apply for their Non-EEA family members under provisions equivalent to a current EU Fam residence card application.

This notice will also bring clarity and comfort to persons who in Ireland who current hold EU Fam residence cards or have EU fam residence cards currently pending.

Another blog on the new scheme post 31st December 2020 will be posted once same has been published.

The full notice can be found here:

http://www.inis.gov.ie/en/INIS/Pages//UK-withdrawal-from-the-EU-Information-for-UK-Nationals-and-their-Non-EEA-family-members-living-in-Ireland

We Are Hiring!

Berkeley solicitors is now recruiting for two positions.

An Immigration Solicitor and a Reception/Admin Support role.

Click Links for details.

 

Immigration Solicitor:

https://www.lawsociety.ie/legalvacancies/viewjobs/solicitor23/?filters=&location=&category=&area=#.X60rOWj7SUk

 

Reception/Admin Support:

https://www.lawsociety.ie/legalvacancies/viewjobs/receptionistadmin-support/?filters=&location=&category=&area=#.X60qxWj7SUk

 

Closing Date for Applications: 23 November 2020 at 5pm.