THE IMPLICATIONS OF THE JONES CASE FOR ‘RECKONABLE RESIDENCE’ FOR NATURALIZATION APPLICATIONS

Many of our clients have been contacting the office concerned and confused regarding their eligibility for naturalization or the position regarding their pending application for naturalization.

This is as a result of the recent judgement of the High Court, Jones v Minister for Justice record number 2018/921 JR.

The requirements for an applicant to be eligible to apply for naturalization are laid out in statute, the primary act being the Irish Nationality and Citizenship Act 1956.

A fundamental requirement to be eligible to apply for naturalization is that you hold the required “reckonable residence”.

For a standard application the required period of reckonable residence is five years, this is reduced to a period of three years for the spouses and civil partners of Irish Citizens and for refugees.

This period of five years can be made up as a period of four years within the last eight, with one year “continuous residence “ in the year prior to application.

This is 2 years in the last four and one year continuous for those eligible for the reduction to 3 years reckonable residence if applying based on being the spouse of an Irish national or a holder of refugee status.

Reckonable residence is also defined in law as residence which is not in breach of immigration law (unlawful residence ), not for the purpose of study and not for the purpose of seeking international protection.

Therefore a person who is legally resident and does not fall into one of the categories above is resident as per the definition of reckonable residence.

A person does not lose their residence or right to reside in Ireland if they leave for holidays, work purposes and for up to six months per year for holders of EU residence cards. They therefore remain resident in Ireland for immigration purposes. The Court has found that the requirement for continuous residence does not equate with residence for immigration purposes, but with physical residence.

There has been a question on the application form for naturalization for a number of years, namely question 5.6, which asks an applicant if they have been absent from the state for more than six weeks in any year in the last five year period.

An applicant is asked to confirm if they have or have not been so absent and if they have, to explain these absences on a separate sheet.

Many clients have sought our advices on this question including clarity as to whether the calculation should be made based on a calendar year or the year immediately prior. We have been asked to clarify if a person leaves and comes back in one day does this count as an absence?

This question also makes little sense to an applicant applying based on marriage to an Irish citizen where their required three years reckonable residence has been in Northern Ireland. The citizenship acts allow spouses of Irish nationals to rely on residence in Northern Ireland to count as their reckonable residence for the purposes of naturalisation. This does not apply to standard applicants.

Therefore the spouse/civil partner of an Irish national who has resided solely in Northern Ireland and has never lived in Ireland is eligible for naturalization in law, but has been totally physically absent from the Republic of Ireland.

A number of years ago applicants began to be informed that their application for naturisation had been deemed ineligible on the basis of question 5.6 and their absences from the state. This became known as the “six week rule”.

There is no note or information on the application form or the attached guidance note to state that absences from the state over 6 weeks per annum will be discounted from an applicants reckonable residence or that same will count as a break of continuous residence if applicable to the year before application.

An applicant for naturalization is also required to fill in an INIS residence calculator and this calculator is provided online. Applicants are never informed to remove from their calculation any absences or that any absences will be subtracted.

The Minister thereafter appeared to operate a flexible policy where absences from some reasons such as work or employment would not be subtracted but others such as for travel, family reasons would be subtracted. The approach appeared to vary from case to case.

By way of comparison, in the United Kingdom the allowable absences are laid out on law , Section 6(1) of the British Nationality Act 1981 allows for 450 days absence in the five year period and 90 days in the year previous. There is also room for discretion on the part of the decision maker. The Home Office also provide detailed guidance for decision makers regarding the meaning of absence, physical residence and technical absence.

It has been difficult to advise clients as to their eligibility for naturalization due to the lack of clarity regarding absences and their effect on the application.

The recent judgement in Jones has changed matters further.

The Court finds in Jones that the law requires continuous residence in the year prior to application and that continuous residence is defined as per the generally accepted understanding and dictionary definition of continuous. Therefore even one days absence from Ireland in the year prior to application will break the continuous residence requirement and leave a person ineligible to apply for naturalization as an Irish citizen.

The court further found that the Minister has no legal basis for the operation of the six week rule, throwing into question the legal validity of certificates of naturalization already granted to persons who did not meet this strict interpretation of continuous residence.

It is also of note that permission letters held by non EEA nationals often state that a condition of permission is that the holder is continuously reside in the state. The letters go on to state that continuous residence is defined as residence in the State, allowing for absences for travel, holiday and so on. Therefore a person remains continuously resident for the purposes of their immigration permission when traveling for work and holiday purposes, but not for the purposes of naturalization.

Furthermore, persons resident in Ireland under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 rights of residence are not affected by temporary absences of up to six months per year.

It it is yet to be seen how the Minister will approach the judgement of the Court in Jones with respect to pending applications for naturalization.

It will also be of note to see if a statutory amendment to the legislation governing naturalization and reckonable residence requirements is now made.

The position is now very difficult for those who have applied for naturalization or those intending to apply in the near future as their ability to travel or the impact this will have on their application for naturalisation is highly uncertain.

We will be keeping our clients updated as to any further developments in this regard and will post any further updates on this blog.

The full judgement can be found here.

 

 

 

 

A QUESTION OF THE LEGALITY OF THE USE OF DOMESTIC DEPORTATION LAW FOR FAMILY MEMBERS OF EU CITIZENS – CHENCHOOLIAH

Regulation 20 to Regulation 22 of the European Communities (Free Movement of Persons) Regulations 2015 implement the Minister’s powers for removal in accordance with Council Directive 2004/38/EC.

The Regulations direct that the Minister may make a removal order against a Union citizen or their family member where the person is no longer entitled to be in the State in accordance with the 2015 Regulations.

However, in practice, the Minister has been invoking the domestic deportation procedure under Section 3 of the Immigration Act 1999 as amended in the circumstances of family members who fall outside the remit of the 2015 Regulations.

The Minister’s approach to utilise the domestic deportation process for family members who have fallen outside the remit of the Regulations, has the effect that the proposed deportee looses certain rights and entitlements available under the 2015 Regulations. For example, a deportation order under domestic law is indefinite in duration while a removal order under the 2015 Regulations expires once the removal has been carried out.

The Minister’s actions have been challenged in a number of judicial review proceedings, the lead of which is the case of Nalini Chenchooliah v the Minister for Justice and Equality, Case C-94/18. In this case, a preliminary reference was made from the Irish High Court to the Court of Justice to seek clarification on the State’s entitlement to use domestic deportation legislation over the removal procedures envisaged by Directive 2004/38.

The questions referred were as follows:

Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive 2004/38/EC has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty Rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

If the answer to the above question is that the expulsion must be made pursuant to the provisions of the Directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?

Ms Chenchooliah argued that as a person who at one time, on account of her marriage to an EU citizen, she previously had a temporary right of residence under Article 6 of Directive 2004/38, and therefore she continues to fall within the scope of that directive and can therefore be expelled from the territory of the host Member State only in compliance with the rules and safeguards provided for in that directive.
It is interesting to note the opinion of Advocate General Szpunar of the 21st May 2019, in in which the Advocate General took the same position as Ms Chenchooliah;

“Therefore, in the light of the foregoing considerations, I am of the view that, since the discontinuation or expiry of a right of residence forms part of the final stage of the exercise of freedom of movement, the expulsion from the territory of the host Member State of a third-country national spouse of a Union citizen continues to fall within the scope of Directive 2004/38, in particular Article 15 thereof, where that citizen has ceased to exercise his freedom of movement in the host Member State by returning to the Member State of which he is a national.”

The case was heard by the Court of Justice on the 15th January 2019 and judgement is currently awaited.

Should the Court of Justice concur with the Advocate General and find in favour of Ms Chenchooliah’s position, it would be appear that many deportation orders issued by the Minister in recent years will be unlawful and in breach of the EU treaty rights law.

IRELAND SEEKS TO INCREASE CHINESE TOURISM WITH 5-YEAR MULTI-ENTRY VISA OPTION

As of 1st July 2019, there is a new 5-year multi-entry visa option for Chinese tourists coming to Ireland. The 5-year multi-entry visa option is available to applicants who have been previously granted visas by Ireland, the United Kingdom, the Schengen States, Australia, Canada, New Zealand, or the USA. Additionally, the applicants must be in full compliance with the terms of those visas.

Over the past 40 years, Ireland and China have maintained diplomatic relations. As a result, China plays a major role in the tourist market in Ireland. Previously, applicants could only apply for 1-year, 2-year, or 3-year multi-entry visas. By providing a 5-year multi-entry visa option, Ireland hopes to increase Chinese tourism to 200,000 by 2025.

The Minister for Justice and Equality, Charlie Flanagan states, ”With a population of over 1.3 billion people and a strong economy, China offers fantastic potential tourism links for Ireland. Our tourist industry is so important to communities in every county on the island of Ireland and I am hopeful that the changes I am announcing today will increase the number of Chinese visitors coming to Ireland in the months and years ahead.”

With the implementation of the 5-year multi-entry visa option, Ireland celebrates 40 years of diplomatic relations with China and aims to enhance not only its relationship with China but also increase Chinese tourism.

For more information, please read here.

US RELEASES 2019 HUMAN TRAFFICKING REPORT; IRELAND FAILS TO MEET MINIMUM STANDARDS

Ireland fails to meet the minimum standards in eliminating human trafficking according to the Trafficking in Persons Report, which is published annually by the US Department of State. The minimum standards are set forth by the Trafficking of Human Persons Protection Act of 2000 (TVPA). This act places each country into four tiers: Tier 1, Tier 2, Tier 2 Watch List and Tier 3. In previous years (2012-2017) Ireland had been categorized as a Tier 1 country, which means it fully met the TVPA’s standards to eradicate human trafficking. However, for the past two years, Ireland has been categorized as a Tier 2 country. Tier 2 means that Ireland does not meet the minimum standards established by the TVPA but is making efforts to do so.

According to the US report, Ireland’s efforts in prosecution and victim protection are ‘insufficient’. Specifically, the report claims that Ireland does meet the TVPA’s minimum standards for the following reasons:

  • Since the law was amended in 2013, Ireland has failed to make a conviction in human trafficking;
  • In 2018, authorities failed to initiate any prosecutions in human trafficking;
  • Authorities have a chronic deficiency in victim identification, referral, and assistance; and
  • Ireland lacks specialized accommodations and services for the victims.

The US report states that Ireland needs to ‘Vigorously investigate, prosecute, and convict suspected offenders of both sex and labor trafficking using the trafficking law.’ The failure to make convictions in human trafficking cases or even initiate prosecution deters victims from coming forth and testifying. To support the victims and encourage them to testify, there needs to be certain protections in place for the victims.

Although Ireland has been trying to increase protection for the victims through new identification and referral mechanisms, it still fails to protect the victims in accordance with TVPA standards. According to the US report, the primary issue with Ireland’s identification method is that there are only formal procedures to identify victims who lack legal residency in Ireland. Thus, there are no formal procedures to identify EEA nationals, Irish nationals, and asylum seekers (with pending applications) as possible human trafficking victims. As a result, EEA nationals and Irish nationals do not have equal protection and equal access to the specialized assistance that Ireland provides to human trafficking victims, because they are not formally recognized as such based on the current identification mechanism.

Furthermore, the US report criticized Ireland’s referral mechanism. Currently, Ireland provides victims with health services, immigration permissions, accommodation, welfare and rent allowance, police assistance, residence permits, repatriation, translation and interpretation assistance, and access to education for dependent children. One of the criticisms of Ireland’s referral mechanism is that it does not offer legal assistance to victims to help them with investigations and trials. This contributes to a lack of prosecutions and convictions. Additionally, there is no legal requirement for victims to receive psychiatric counselling and the counselling available has been deemed ‘insufficient’. The report claims there is ‘a lack of specialized services in the centers for all victims, but especially for female victims who had been traumatized due to psychological, physical, or sexual violence.’

Ireland not only lacks  specialized services for human trafficking victims, but also shelters specifically allocated for human trafficking victims. As of now, Ireland provides accommodations for human trafficking victims through its direct provisions system. The direct provisions system was initially established to provide services for asylum-seekers. The US report states that the direct provisions system ‘had inadequate privacy, was unsuitable and potentially unsafe for traumatized victims, could expose them to greater exploitation, and undermined victim recovery.’

Due to the issues noted above, Ireland fails to comply with the standards set forth by the TVPA. In order to be in full compliance with the TVPA standards, the US report recommends that Ireland takes the following actions:

  • Train law enforcement and prosecutors on developing cases with evidence to corroborate victim testimony and train law enforcement, judges, and prosecutors on a victim-centered approach;
  • Improve victim identification and referral and issue a revised referral mechanism in coordination with NGOs, offering formal identification, a recovery and reflection period, and services to all victims without referral from police;
  • Increase efforts to identify and protect all victims, especially of labor trafficking and forced criminality, and stop joint inspections between labor inspectors and immigration authorities, which pose a barrier to identification of victims;
  • Adopt a legal provision to exempt victims from inappropriate penalization for unlawful acts traffickers compelled them to commit;
  • Offer specialized accommodation to victims;
  • Amend the atypical working scheme for sea fishers to reduce their risk of labor trafficking;
  • Increase legal assistance for trafficking victims, including for assisting investigations and court proceedings that can be accessed at the earliest opportunity and prior to engaging with police;
  • Establish a national hotline to report trafficking crimes and provide victim assistance and referral;
  • Increase access for victims to compensation, particularly for those involved in sex trafficking; and
  • Establish an independent national rapporteur to help identify and address gaps in antitrafficking strategy and efforts.

Not only does Ireland need to prosecute and convict traffickers to the full extent of the law, but it also needs to ensure that it provides adequate support for the victims, i.e. health services, psychiatric counselling, specialized accommodations, legal assistance.

For more information please read this article.
The full Trafficking in Persons Report can be read here.

 

PERVAIS V MINISTER FOR JUSTICE AND EQUALITY [2019] IEHC 403 AND THE DEFINITION OF A ‘DURABLE RELATIONSHIP’

The High Court has delivered judgement in a case that may have a significant impact on applications from the partners of EU citizens under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015,

Partners can fall within the category of “permitted family member”.

In the Directive beneficiaries in this category are described in Article 3(2) as the partner “with whom the Union citizen has a durable relationship, duly attested”.

This definition can be found at reg.5(1)(b) of the Regulations.

In this case the Court asked the question: What is a “durable relationship”?

The Court notes:
The phrase is not defined in the Citizens’ Rights Directive, most likely so as to allow the various member states to proceed by reference to concepts of relationships/durability that suit their respective mores and traditions.

The Court was critical that the Minister has not tried to define or elaborate on this definition by way of Ministerial guidance. The Court found that an untenable situation has arisen whereby no-one (applicants, officials or indeed the court) quite knows what a “durable relationship” is.

It has emerged in the proceedings that a “durable relationship”, as conceived by the Minister involves a ‘sort of’ two-year benchmark, however a lower timeframe can be applied if that is considered to be merited on the evidence in any one case… though quite when the evidence will be (or is) considered to justify the application of a lower timeframe and how a particular lower timeframe is settled upon is entirely unclear.

The Judge went through the EU1A application form and guidance note in some detail (this is the application form on which a permitted family member makes an application for an EU residence card). The Court noted that as the concept of “durable relationship” is not defined, asking someone to provide “Evidence of a durable relationship” is largely, if not completely, meaningless.

The Court also held that the Minister had allowed a confusion to arise between the concept of a durable and attested relationship and the conception of “cohabitation”.

The Court found in this respect:
“… it seems to the court that the concept of “cohabitation” has skewed the Minister’s approach to such applications as are made under reg.5, not least in the suggestion that “tenancy agreements, utility bills” would be suitable evidence of “cohabitation”. Perhaps they would, but reg.5(1)(a) refers to a “durable relationship”, not a relationship of cohabitation.”

The Court outlined a number of scenarios where a durable and attested relationship might exist both with or without cohabitation and made a number of remarks as to the approach of the Minister to require evidence and documents of cohabitation.

The Court answered a number of questions in concluding its judgment, most notably:

Q2. (i) Has Directive 2004/38/EU been adequately transposed into domestic law by the respondents?
(ii) Have the respondents infringed the principle of effectiveness by failing to provide any legislative definition of the concept of “durable relationship duly attested” or any legislative framework/guidance for the test to be applied and the proofs required?

No to (i).

Yes to (ii), save that the court considers that a definition could also be provided in non-legislative guidance (which to this time this has not occurred). The manner of transposition yields the various legal issues described herein and the principle of effectiveness has been breached.

It will be interesting to see how the Minister deals with the Court’s judgement in this matter. It appears that in the Court’s view it would be open to the Minister to deal with this issue by way of statute/ amendment to the regulations or alternatively by way of Ministerial guidelines.

We hope that in light of this judgement the Minister goes on to provide a clear definition of a “durable relationship, duly attested” so that there is more clarity for EU citizens and their partners as to their eligibility for an EU fam residence card.

The full judgment can be read here.

SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

RE-ENTRY VISAS NOW ABOLISHED FOR ADULT HOLDERS OF IRP/GNIB CARDS

As of 13th May 2019, visa required nationals who hold a valid IRP/GNIB card will no longer need a re-entry visa to travel back to Ireland. An individual will only need to be able to show their IRP/GNIB card and their passport or travel document to airline staff and immigration authorities as evidence of their right to travel to the State.

With this change Ireland has come into line with other EU Member States who rely similarly on residence permits rather than requiring re-entry visas from those holding immigration permission in the State.

This change has been long requested and will benefit an estimated 40,000 persons each year, taking away the need for them to pay a re-entry visa fee and submit their passport or travel document to the Irish Naturalisation and Immigration Service while awaiting the outcome of their application, which could take in and around five weeks to process.

It is important to note however that as minors under the age of 16 years are not issued with an IRP/GNIB card their parent or guardian will still need to apply for a re-entry visa for them to allow them to travel to and from the State. While all other visas must be applied for from outside of the State, an application for a re-entry visa for a minor can be made from within the State.

Further worth highlighting are the Irish Naturalisation and Immigration Service’s instructions that in light of the delays in securing an appointment to register immigration permission at the Burgh Quay Registration Office, if living in Dublin, and the further two week period it may take to receive one’s IRP card, it is advised that visa required nationals intending to travel to and from the State in the first four months of their stay should apply for a multiple entry visa, which will allow for them to undertake travel in the interim period before their IRP card is issued to them.

For further information on these changes and their implications please see the Irish Naturalisation and Immigration Service website here.

UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.

 

WELCOME CHANGES TO IMMIGRATION PERMISSION FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The purpose of the Critical Skills Employment Permit Scheme is to attract highly skilled people to Ireland in key areas where skills shortages have been identified, mainly in the IT Sector. The Irish Naturalisation and Immigration Service (INIS) have recently announced an update on revised immigration arrangements for family members, spouses and partners of the holders of Critical Skills Employment Permits (CSEP).
The previous immigration requirement was that family members, spouses and partners of Critical Skills Employment Permits obtain their own Dependant /Partner/ Spouse Employment Permit from the Department of Business, Enterprise and Innovation (DBEI). Although more favourable conditions applied to the grant of these employment permits, this still amounted to an obstacle to access to the labour market and often delayed or hindered a person’s ability to work in the State.

From 6th March 2019, the INIS will now grant eligible spouses and de facto partners of CSEP holders’ permission to reside in the State on Stamp 1G Conditions, without the need to obtain a work permit from DBEI.

This change will affect the spouses and partners of non- EEA national CSEP holders in terms of their permissions in the State and their access to the labour market. In addition, the Policy change also applies to the partners and spouses of Researchers in the State on Hosting Agreements.

This policy change means that partners and spouses of CSEP holders no longer need to apply for and hold their own employment permit in order to work in the State. They will be eligible to work in the State on the basis of their own Stamp 1G permission.

The new procedure allows spouses or partners of CSEP holders currently resident in the State, to attend the INIS registration office at Burgh Quay. They will be issued a new Irish Residence Permit (IRP) on Stamp 1G. This will allow the registered person to access the labour market without acquiring a work permit.

There are no charges for those that present a valid IRP however if the current IRP is due for renewal, the normal registration of €300 will apply. If you wish to register under this new policy and you live outside of Dublin, you must attend your local Garda Registration Office.
In addition to this change in policy, from April 1st of 2019, INIS have also confirmed that there will be a new pre clearance procedure in place for non- EEA de facto partners and spouses of CSEP holders. Both visa and non-visa required nationals will now be required to seek permission to reside in the State as spouse or partner of a CSEP holder before arriving in the State. This new procedure is intended to reduce processing times and provide clarity with the new Stamp 1G conditions. The INIS have previously indicated their intention to operate such a pre clearance procedure in respect of many other family reunification applications from non-visa required persons. It will be interesting to see if this pre clearance procedure in respect of partners and spouses of CSEP holders is rolled out to other categories of family reunification.
Ultimately this new policy is intended to provide clearer conditions and more accessibility to the labour market for spouses and partners of CSEP holders. While there is now a necessity for non-EEA spouses and partners to go through a pre clearance procedure before entering the State, this has been introduced with the intention of a more streamlined application and registration process overall in respect of CSEP holder’s family members.

This change in policy is to be welcomed, it is our view that any restrictions on a person’s right to work and access the labour market should be removed from the Irish Immigration system. The Reform Stamp 3 campaign should be congratulated for their work in campaigning for this change.

Our office is currently working on many applications for change in immigration permission from Stamp 3 to Stamp 4 to allow our clients the right to work and earn a livelihood.

IMPORTANT UPDATE ON BREXIT AND THE RIGHTS OF NON-EU/EEA FAMILY MEMBERS OF BRITISH CITIZENS

In the face of the uncertainty and worry facing many in light of the ongoing Brexit deliberations, the Department of Justice has, on the 29th of March 2019, published a communication aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen, in order to provide an update on the approach they intend to take in the event that the UK leaves the EU in a so called ‘no-deal’ scenario.

The communication defines no-deal as referring to circumstances where there is no further extension of the negotiating period and the UK does not ratify the Withdrawal Agreement before the 12th April 2019, in which case it states there will be no transition period and EU law will cease to apply to and in the UK as of 11pm (midnight CET) on that day.

Alternatively, if a deal is reached, according to the Department’s communication, the provisions of the Withdrawal Agreement on Citizens Rights will apply and EU law will only cease to apply in and to the UK following the transition period of 21 months, up until the 1st of January 2021.

The information note addresses two groups of persons in contemplation of a no-deal Brexit; those with an EU treaty rights application submitted and pending and those holding a valid Stamp 4 EUFam residence card on the 12th of April 2019.

With respect to those who have an application that is still being processed, the information note provides no further information other than to state that such persons are not required to take any action at this time.

For those who are currently holding a valid Stamp 4 EUFam residence card, the information note seeks to reassure that you do not need to worry about losing your right to residence in the State in the case of a no-deal scenario.

It states that, although in a no-deal scenario EU law, in particular the provisions of the European Communities (Free Movement of Persons) Regulations 2015, will no longer apply to you, the Irish government is currently putting in place arrangements to allow a transfer under domestic immigration provisions, which will provide for your continued residence in the State.

It is further stated that the aim of the arrangements being put in place is that you will retain, as far as possible, similar rights to those you have held as the holder of a Stamp 4 EU Fam residence card, including with regard to access to the labour market.

The Department states that they are currently in the process of putting in place a communication strategy that, in the case of a no-deal scenario, will include directly contacting individuals who will be affected by the above.

Further, addressing the matter of UK nationals coming to the State after the 12th of April 2019, if no deal has been made and there is no extension of the negotiating time, the Department provides no information other than to state that they will be issuing further updates on their website in this regard.

The note is also silent in relation to family members of British/UK citizens who have applications for entry visas to the State pending with Irish Embassies/ Visa Offices abroad and the INIS visa office, Dublin. It is unclear as to what the status of such applications will be in the event of a no deal scenario.

If you think you or your family members may be affected by Brexit it is advisable to regularly check the Department’s website, which they state will be updated as developments continue. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

The full text of the information note can be found here. (http://www.inis.gov.ie/en/INIS/Pages/information-note-on-non-eea-family-member-of-uk-citizens-seeking-eu-treaty-rights )