Uncategorized Archives - Berkeley Solicitors

ISD NOTICE CONFIRMS THAT TEMPORARY PROTECTION HOLDERS DO NOT NEED TO APPLY FOR A NEW TEMPORARY PROTECTION CERTIFICATE

26th May 2023

The Department of Justice has recently published a travel confirmation notice for beneficiaries of Temporary Protection, benefiting from the Temporary Protection Directive.

The notice confirms that the Minister for Justice has extended immigration permissions for all beneficiaries of Temporary protection to 4th March 2024. From 16th February 2023, non-nationals with a Temporary Protection Certificate living in Ireland will not need to apply for a new Temporary Protection Certificate.

Expired certificates can be used as proof of entitlement to Temporary Protection and any related state services, up until 4th March 2024.

If a Temporary Protection holder has an expired Temporary Protection Certificate, and they intend to travel and subsequently re-enter the State, if they are a national of Ukraine or a non-visa required national, no action is necessary.

If they are a national of a country that is a visa-required national for Ireland, the Department of Justice have advised to contact [email protected] to ensure that the Temporary Protection holder has the necessary documents to re-enter Ireland without a visa.

The full Travel Confirmation Notice can be accessed via the following link:

https://www.irishimmigration.ie/travel-confirmation-notice/

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

IMMIGRATION SERVICE DELIVERY ANNOUNCE BRIDGING PERMISSION FOR ENGLISH LANGUAGE STUDENTS ENROLLED IN HIGHER EDUCATION PROGRAMMES

14th April 2023

Immigration Service Delivery have announced a bridging permission for students enrolled in English Language courses who have subsequently enrolled in a Higher Education Programme. The bridging permission applies where students have successfully completed a second or third course and have then enrolled in a Higher Education Programme commencing by the end of October 2023.

The bridging permission will be a short-term Stamp 2 permission, which will be granted until 30th September 2023. The permission will be valid from the date of expiry of their current IRP card. It is a requirement that applicants provide documentary evidence of a confirmed and fully paid Higher Education Programme listed on the Interim List of Eligible Programmes (ILEP) commencing September 2023.

Students wishing to avail of this bridging permission must have an in-date IRP card, or a card that has expired within one month when applying for the permission. They must apply for the permission via their local immigration office if residing outside of Dublin, or via the online portal if residing in Dublin. Students must satisfy the criteria for the bridging permission, provide evidence of their enrolment in a Higher Education Programme listed on the ILEP, and provide evidence that the course fees have been paid in full.

Further details on the bridging permission can be found here:

https://www.irishimmigration.ie/english-language-students-stamp-2-bridging-permission/

Details on the Interim List of Eligible Programmes can be found here:

https://www.irishimmigration.ie/coming-to-study-in-ireland/what-are-my-study-options/interim-list-of-eligible-programmes-ilep/

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

IMMIGRATION IN IRELAND STATISTICS MID-TERM REVIEW

3rd March 2023

The Department of Justice has provided up to date statistics from January 2022 to June 2022 in relation to, Residency and EU Treaty Rights, Visa, Citizenship statistics, International protection, and Removal/Deportation. The statistics were broken down by nationality, gender, and age group.

In relation to EU Treaty Rights Applications from January to June 2022, the data shows that nationals from Brazil, South Africa, and Pakistan were the top nationalities of applications received by the Department of Justice. 1356 applications were received from Brazil, 240 from Pakistan, and 153 from South Africa.

The statistics found that nationals from India, Egypt, and China were the top nationalities for Long Term Residency Applications. 30 applications for Indian nationals, 26 applications for Egyptian nationals, and 25 for Chinese nationals (including Hong Kong).

The total visas decided from January to June 2022 were primarily from India, Nigeria, and Turkey. With 21535 visas from Indian nationals, 3396 visas from Nigerian nationals, and 3019 visas from Turkish nationals. In total, most of the visas granted were for Indian (20736 visas), Turkish (2812 visas), and Chinese nationals (2477 visas). The most refused visas were for nationals from Nigeria (1568), India (799), and Pakistan (541), with an overall number of 5825 visas refused. The total decided re-entry visas from January to June 2022 were from Indian, Pakistani and Egyptian nationals.

From January to June 2022, there were 7039 citizenship certificates issued, mainly in respect of United Kingdom, Indian, and Pakistani nationals.

In total, there were 6495 applications received relating to International Protection Applications for 2022. Mainly from Georgia (1811), Somalia (938), and Algeria (698). Out of those applications, there were 1037 applications that have been approved, primarily from Somalia, Afghanistan, and Zimbabwe. Moreover, 1657 applications were refused primarily from Nigeria (216), Georgia (216), Zimbabwe (204).

In relation to Family Reunification Applications, there were 1137 applications submitted from January to June 2022, mainly from nationals of Somalia (489), Afghanistan (247), and Syria (69). 1911 applications for access to the labour market were submitted from January to June 2022, mainly from Somalia, Georgia, and Nigeria nationals.

There were 23 total removals effected, primarily from Romania, Lithuania, and Poland nationals. 54 deportations effected primarily from Pakistan, Nigeria, and Georgia nationals.

The book for the full statistics can be found here: https://www.irishimmigration.ie/wp-content/uploads/2023/01/Mid-Year-Review-Statistics-Booklet-2022.pdf

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

ADVOCATE GENERAL’S OPINION FINDS IRELAND CANNOT REFUSE DISABILITY ALLOWANCE TO DEPENDENT RELATIVE OF EU WORKER

28th February 2023

The Court of Justice of the European Union (CJEU) has released an opinion by the Advocate General in relation to Case C-488/21, Voican v Chief Appeals Officer.

The case concerns GV, a Romanian national, and her daughter AC, a dual Romanian Irish citizen. GV joined her daughter in Ireland in 2017, on the basis that under EU law, some family members, including dependent parents, may join a mobile EU worker in the Member States in which they live and work. The applicant has been financially dependent on her daughter and has also suffered from degenerative changes in her arthritis.

In 2017, GV made an application for Disability Allowance under the Irish Social Welfare Consolidation Act 2005. This was refused, and the appeal of the decision was also refused. Both decisions stated that the reason for the refusal was that GV did not have a right of residence in Ireland.

On review, it was found that GV, as a dependent direct relative of an EU citizen working in Ireland, had a right of residence, but was not entitled to social assistance payment. It was argued that under Irish law, GV must not become an unreasonable burden on the national social assistance system.

In the Advocate General’s opinion, she stated that the CJEU should embrace a broad concept of family dependency, which should extend to the material, financial, physical and/or emotional support of a family member. Therefore, even if GV would no longer need the financial support of her daughter, she might still fulfil the requirement of dependency which allowed her to join her daughter in the State. Thus, a Member State awarding financial support by way of a social assistance allowance does not terminate the dependency of the supported person.

The opinion highlighted that at the EU level, there is a legislative consensus about the acceptable balance between the interests of free movement of workers between Member States, and the concerns for the welfare systems of each Member State. The result of that consensus is that neither mobile EU workers nor their dependent direct relatives who are residing legally with them can be regarded as an unreasonable burden by that State. In accordance with the principle of equal treatment, such family members can only be regarded as a reasonable or unreasonable burden in the same way that nationals of that State could be regarded as so.

Therefore, a Member State cannot refuse access to special social assistance payments to a dependent direct relative of a mobile EU worker, on the ground that they represent an unreasonable burden on the social assistance system of that State.

Please note that the Advocate General’s opinion is not binding on the CJEU. The full judgement on this case will be given at a later date.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

UPCOMING CITIZENSHIP CEREMONIES

13th February 2023

The Department of Justice has announced that the next citizenship ceremonies will take place on Monday the 19^th and Tuesday the 20^th of June 2023. The ceremonies are being hosted at the Killarney Convention Centre in Killarney, Co. Kerry.

Invitations will issue in due course to eligible candidates. Candidates are required to produce identity documents, for example a valid passport, on the day of the ceremony for verification purposes. At the ceremony candidates take an oath of fidelity to the nation, receive their certificate of naturalisation and become Irish citizens.

Berkeley Solicitors wishes to congratulate our clients who have recently been approved their applications for a Certificate of Naturalisation, and all who will be attending these ceremonies.

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

10th February 2023

The Supreme Court has recently delivered a judgement in Jaimee Middelkamp v Minister for Justice and Equality and Irish Human Rights and Equality Commission [2023] IESC 2.

The case concerned a Canadian woman who was resident in Ireland pursuant to the Working Holiday Authorisation Scheme, which allows participants between the ages of 18 and 35 to travel to the State to study and work for a limited maximum stay of two years. Ms Middelkamp arrived in the State in 2018 under this Scheme.

Ms Middelkamp made an application under s.4(7) of the Immigration Act 2004 before the expiry of her permission, seeking an extended entitlement to remain in Ireland. In her application, Ms Middelkamp highlighted that her husband, a Canadian citizen, was to remain resident in the State for two more years to pursue his studies and that she did not wish to separate from him.

This application was refused by the Minister in January 2020, citing the interests of public policy and the common good in maintaining the integrity of the immigration system. The Minister’s decision stated that the appellant’s rights to family life under Art.8 ECHR were not affected by this decision.

Ms Middelkamp commenced judicial review proceedings seeking to quash the Minister’s decision, arguing that this violated her right to family life under Art.8 ECHR. The High Court granted an order of certiorari quashing the Minister’s decision. This was then appealed to the Supreme Court. The Supreme Court found that Barrett J in the High Court erred in his decision and upheld the decision of the Minister to refuse an extension of Ms Middelkamp’s permission.

Hogan J of the Supreme Court found that the Minister’s decision did interfere with Ms Middelkamp’s right to family life under Art.8(1) ECHR, as its effect was to oblige her to separate from her husband for two years. However, he found that this interference was justified as being necessary in a democratic society. Hogan J highlighted that there was a strong public interest in ensuring that the strict terms of the Working Holiday Authorisation Scheme were adhered to, the terms of which Ms Middelkamp expressly agreed to. If the terms of such Schemes were not adhered to, the State’s capacity to operate these limited-time Schemes would be compromised.

Hogan J found that the Minister’s decision letter gave sufficiently detailed reasons for the refusal. He found that although the Minister was in error in stating that Ms Middelkamp’s Art.8 ECHR rights were not engaged by the decision, it was implicit in the decision that although these rights were engaged, they did not prevail against broader public policy objectives.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

DECISIONS TO REVOKE EU FAM RESIDENCE CARDS AND IRISH PASSPORTS POTENTIALLY UNLAWFUL

20th January 2023

Two recent judgements of the Superior Courts have called into question the legality of all decisions made by the Minister for Justice in retrospectively revoking EU Fam residence cards, immigration permissions, Irish passports and declarations of refugee status.

Please see our previous blog articles on the Supreme Court judgement in U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25, and the High Court judgement in AKS v the Minister for Justice [2023] IEHC 1.

If you have received a decision to revoke your EU Fam residence card on the basis that it was never valid or that it was cancelled with effect from a date in the past or have had your application for Irish citizenship deemed ineligible on the basis of revocation of your EU residence card, these decisions may be unlawful.

If a child previously held an Irish passport that was cancelled by the Passport Office as a result of revocation of their parents EU Fam residence card or permission to reside in the State, it is also possible that the decision is unlawful.

It is important to seek legal advice if these judgements are relevant to your case.

Please do not hesitate to contact Berkeley Solicitors if you have been impacted by these important issues.

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

20th January 2023

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

Ms Justice Phelan of the High Court has delivered judgement in the case of AKS v the Minister for Justice [2023] IEHC 1, which addresses the impact of the Supreme Court judgement U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25.

The facts in the AKS case arise from the decision of the Minister to revoke a permanent residence card to the parent of an Irish citizen child on the basis of an allegation of fraud. The decision of the Minister was to find that the EU Fam Residence card was revoked in its entirety on the basis of fraudulent conduct. It was submitted by the Applicants in this case that the 2015 Regulations do not permit retrospective revocation and furthermore that a revocation of an EU Fam residence card to the parent of an Irish citizen child, does not impact that child’s right to Irish citizenship. The Applicants also argued that the review process under the 2015 Regulations does not sufficiently meet the procedural safeguards and protections required by Directive 2004/38/EC.

In following the Supreme Court judgement UM, which arose in the context of revocation of refugee status of a parent rather than an EU Fam residence card, Ms Justice Phelan held that “Neither the 1956 Act nor any other law identified to me or by me provides for the denationalisation of a citizen by birth.”

Judge Phelan further confirmed that The 2015 Regulations make no provision for the acquisition or loss of citizenship and that the 2015 Regulations, properly construed, do not provide for a power to retrospectively nullify vested citizenship rights of a non-party child,

Judge Phelan held:

Neither Regulation 27 or 28 of the 2015 Regulations provide in express terms for a retrospective nullification of permissions which have issued on foot of false or misleading information or by reason of a marriage of convenience. Indeed the provisions of Regulations 27 and 28 are couched in the present tense both as regards a permission which “is being relied upon” and a marriage which “is” a marriage of convenience (as opposed to a post-divorce situation where reference would be made to the marriage in the past tense). It is also clear that the Regulations do not mandate the revocation of a permission that “is being relied” upon but they empower revocation by providing for a discretion (“may”) to revoke. This is in contrast with the language used in the 2006 Regulations where revocation was mandatory.

In contrasting the facts of UM and AKS, Ms Phelan concluded that in both contexts the relevant legislation did not envisage retrospective revocation where derived rights are impacted:

It seems to me that the starting point should be that the principle of prospective operation of legislation and legislative provisions should apply when interpreting the provisions of the 2015 Regulations and that it is appropriate to approach those Regulations on the basis that they are not to be presumed to permit retrospective alteration of the legal nature of past conduct and events affecting an acquired status unless clear words are used, mindful of course that the 2015 Regulations, as transposing Regulations, also require to be interpreted in a manner which gives effect to the Directive. It is clear from UM that the concept of retrospective nullification affecting acquired status while not outlawed in theory is considered by the Supreme Court to be generally unsuited to the public law context, and particularly unsuited to addressing historic immigration status and derived rights and requires a clear legal basis.

In relation to the Minister’s power to revoke the residence permission of the applicant, with the impact of the revocation only impacting his own position, and not the position of his minor child, the Court concluded:

Contrary to the First Respondent’s asserted understanding of her powers, it does not follow from a finding of fraud or marriage of convenience that a residence permission will be automatically revoked. While it is an open question as to whether the First Respondent had been vested with a power to retrospectively revoke the Second Applicant’s EU residence rights, it is nonetheless clear that any power was discretionary and therefore fell to be exercised in a proportionate manner having due regard to affected rights and interests.

If you have been impacted by these important issues, Please contact Berkeley Solicitors for advices.

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

9th January 2023

On the 3^rd of January, 2023, the Department of Justice announced that all those currently holding valid Stamp 1 permission to work as a non-EEA crew member in the Irish Fishing Fleet on or after 1^st January 2023 will be granted Stamp 4 immigration permission.

This permission will be granted on an exceptional basis due to the closure of new applications for the Atypical Working Scheme (AWS) for such non-EEA crew. The AWS Scheme closed following an agreement to transfer responsibility for work permissions in this sector to the Employment Permit system. The granting of Stamp 4 permissions has been announced to provide certainty and security to employees and employers in this sector during this transitional period.

Stamp 4 immigration permission will be granted to any individual non-EEA crew member who currently holds a valid IRP card expiring on or after 1^st January 2023. Any individuals who hold a letter of permission under the AWS Scheme issued on or after the 3^rd of October 2022, will also be eligible for Stamp 4, as such letters are valid for 90 days from the date of issue.

Eligible individuals are advised to make an appointment as soon as possible at their local GNIB Office to be granted this permission. Those attending an appointment should bring their current, in-date passport, their most recent valid in-date letter of permission under the AWS Scheme, and their current IRP card (if applicable).

Any crew member whose AWS permission expired on or before the 31^st of December 2022, and who has not renewed their permission, will not be eligible for the granting of a Stamp 4 permission. We find this to be a very disappointing decision as many persons who have worked for many years under the AWS who may have fallen out of the system through no fault of their own are not included in this policy and will be required to continue to make their own individual cases to the Minister for Justice for Stamp 4 permission.

The full announcement from the Department of Justice can be found here:

https://www.irishimmigration.ie/sea-fishers-atypical-working-scheme-update/

Information regarding the closure of the Atypical Working Scheme can be found here:

https://www.irishimmigration.ie/closure-of-the-atypical-scheme-aws-for-non-eea-crew-in-the-irish-fishing-fleet/

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

ISD ANNOUNCE INITIATIVE TO FACILITATE NON-EEA NATIONALS WITH PENDING RENEWAL APPLICATIONS TO TRAVEL DURING CHRISTMAS

19th December 2022

Immigration Service Delivery has recently announced an initiative to facilitate non-EEA nationals travelling during the Christmas period. The Registration Office is currently experiencing delays of 5-6 weeks in processing renewals of IRP cards. ISD has stated that after such renewals are completed, it may take a further two weeks to receive a new IRP card in the post.

Due to these delays, the Minister is issuing a Travel Confirmation Notice, requesting carriers to allow individuals to travel on their recently expired IRP where a renewal application for their IRP was submitted before the expiry of their current permission. This initiative has been introduced to facilitate nationals who are required to renew their current permission and who wish to travel internationally during Christmas.

Non-EEA nationals may use their current recently expired IRP card to enable them to travel from 9^th December 2022 to 31^st January 2023, provided an application for renewal was submitted in advance of the expiry date of their IRP card.

Those wishing to avail of the initiative must download and print the notice published by ISD, and present it along with their expired IRP card and proof of their renewal application to immigration authorities and airlines if requested to do so.

The ISD notice can be found here:

https://www.irishimmigration.ie/isd-announces-initiative-to-facilitate-customers-travelling-at-christmas/

Further information on this initiative can be found here:

https://www.irishimmigration.ie/wp-content/uploads/2022/12/FAQs-Travel-Arrangement-Form-09-December-2022-to-31-January-2023.pdf

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.