ANOTHER IMPORTANT JUDGEMENT ON GOOD CHARACTER ASSESSMENTS IN NATURALISATION APPLICATIONS

The Court of Appeal have delivered another important judgement relating to the Minister’s assessement of “good character” for the purposes of applications for naturalisation in the case of MNN v Minister for Justice and Equality [2020] IECA 187.

Along with the recent judgement of Talla v Minister for Justice and Equality [2020] IECA 135 this judgement is an important ruling with respect to the Minister’s obligations when conducting assessments of “good character” and could see a shift in the way in which applications for naturalisation are to be considered by the Minister.

The applicant in this case applied for naturalisation in October 2013 and received a refusal of his application based on good character grounds.

The applicant declared in his application that he had two convictions for road traffic matters, which occurred in December 2012, namely failure to display road tax and failure to display insurance disc. The applicant had only become aware of these matters in 2013 as the fixed penalty notices and summons had been sent to his former address with his spouse, which he never received.

In early 2016, the Minister sought further information from the applicant in relation to an incident in which he was described in the report as a “witness”, where Section 12 of the Child Care Act had been invoked following a domestic altercation.

The applicant provided a thorough explanation for this matter and had instructed legal representation in September 2017 to make further representations to the Minister. The court described the applicant as providing a “frank and forthright explanation”.

Some four and half years after applying for naturalisation, the applicant’s application was refused in February 2018. The Court examined in detail the “submission” upon which the decision to refuse was based. The Court noted that it was unclear if the decision maker had access to all the relevant information and context, including the applicant’s detailed representations in relation to the incidents.

The Court highlighted that the Minister’s absolute discretion in determining applications for naturalisation does not “relieve the Minister of the obligation to operate within the rule of law”.

The Court goes on to outline a set of principles to be applied in assessing good character and notes that even though naturalisation is a privilege, applicants do not enjoy “inferior legal protection”. Good character is to be assessed “against reasonable standards of civic responsibility” and the connection between character and criminality can only be established when the Minister has all information including “context and mitigating factors”. The Minister must undertake a comprehensive assessment of the person and “all aspects of character”, and “Whether the appellant is a model citizen plays no part in what the Minister has to determine…”.

The Court set out the test for assessing applicants who may have a criminal offence in their past:

“Criminal convictions are relevant to the assessment of character, but they are not, in themselves, determinative thereof. Thus, it is not sufficient for the Minister to have regard only to the fact that an applicant for naturalisation has criminal convictions. What is required is a consideration of ‘all aspects of an applicant’s character’ in deciding whether he or she meets the relevant requirement for the purpose of s. 15 of the Act. The correct test is worth repeating. It is not whether an applicant has previous criminal convictions- it is wider in scope than that. An applicant may be assessed as a person of good character even if he has criminal convictions, perhaps, all the more, so if the convictions in question relate to strict liability offence. Such offences do not depend of personal moral culpability. As noted by Lang J. in Hiri, a person may still be of good character notwithstanding a criminal conviction and a person may not be of good character despite having a clean criminal record.”

The Court reiterates that the Minister is entitled to take into consideration “allegations” or matters that do not result in criminal proceedings, however they should be taken into assessment with “all relevant information”.

The Minster in this case was found to have considered the “alleged incidents” as more than alleged.

The Court emphasised that where the Minister relies on traffic offences to determine that the appellant is not of good character, he must have an understanding of the nature of the offences. Also, the understanding that leads the Minister to conclude that the applicant is not of good character must be stated in reasons that can be understood by the Applicant.

The Court was not satisfied that the Minister had before him all the relevant information to enable him to form a reasonable view as to whether the appellant was of good character. The Court emphasised that there was nothing on the face of the decision to suggest the entire file, including the applicant’s submissions regarding the incidents, were considered by the decision maker.

The decision was therefore held to be unlawful as it was not evident that the Minister had considered the applicant’s submissions in reaching the conclusion that the applicant was not of good character.

The decision making process in itself, was found by the Court to be in breach of natural and constitutional justice.

This is a very significant judgement from the Court of Appeal, because it raises questions regarding the legality of many decisions of the Minister in refusing naturalisation on good character grounds.

If you have been refused naturalisation on the grounds of good character please contact the office to discuss your case with us.

MINISTER FOR JUSTICE ANNOUNCES BURGH QUAY REGISTRATION OFFICE TO REOPEN AND EXPANSION OF ONLINE REGISTRATION RENEWAL SYSTEM

On 7th July 2020 the Minister for Justice, Helen McEntee, announced that the Online Renewal system for immigration permissions will be expanded to allow all Dublin based non-nationals to apply online to renew their immigration registration.

It is expected that this will make the renewal process easier for thousands of people every year, and significantly reduce the number of people who need to attend the Burgh Quay Registration Office in person.

The online system will be made available from 7th July 2020 for those with an urgent need to travel and who require an Immigration Residence Permit (IRP) card before they travel.

Making the announcement, the Minister stated:

“I’m very pleased to be able to announce the expansion of our online Registration Renewal System. This is good news for our Dublin based customers because it makes the whole process easier and means they can do their renewal from the comfort of their own home instead of having to book an appointment to come into the city and attend Burgh Quay. 

 Now, all that applicants have to do is complete a form online, upload supporting documents, pay the fee and then submit their passport and current IRP card via registered post. This is much easier and quicker than the previous system, where it could sometimes be difficult to get an appointment.” 

The Minister also announced that the Burgh Quay Registration Office will reopen on 20th July 2020 for first time registration. As first-time registrations require biometrics to be taken, it is not possible to for these to be done online.

Individuals who had their first-time registration appointments cancelled when the Burgh Quay office closed in March due to Covid-19 restrictions will be prioritised once the office reopens. The Immigration Service Delivery will be contacting those affected to organise new appointments.

The full announcement can be read here.

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

CURRENT DELAYS ON THE PROCESSING OF EU TREATY RIGHTS APPLICATIONS

 

Principal of Berkeley Solicitors, Karen Berkeley, was quoted in The Times on the 6th July 2020 highlighting her concerns regarding the current delays in the processing of EU Treaty Rights applications.

The article referred to the Minister’s recent response to a Parliamentary Question, in which the Minister confirmed as follows:

There is a significant number of review cases on hand arising from a sustained increase in applications since 2014. Currently, there are 2,283 cases awaiting processing at EU Treaty Rights review stage, of which 1,751 review applications (76%) have been awaiting a decision for over a year, with the oldest cases having been received in May 2017.

Ms Berkeley indicated her concern regarding these delays which have been creeping up over the last number of years. She stated that the courts have suggested that six months is a reasonable timeframe for the EUTR review applications, and once the timeframe goes beyond six months the Department may potentially be in reach of the EU law.

Ms Berkeley highlighted some clients of her office are waiting up to 18 months for a decision, a clear breach of the EU law. She also confirmed that Berkeley Solicitors are currently taking cases to court for some clients who are experiencing these delays.

The delays are a particular problem for the family members of British citizens currently waiting the outcome of their EU Treaty Rights review applications. After the 31st December 2020, their EU Treaty Rights will cease due to the end of the Brexit transition period. There is no clarity on what will happen to these pending applications

Read the full article here:

https://www.thetimes.co.uk/article/immigration-permits-under-eu-treaty-taking-over-a-year-hn29fv09b

Read the Minister’s response to the Parliamentary Question here:

http://www.justice.ie/en/JELR/Pages/PQ-30-06-2020-287

VISA SERVICES HAVE RESUMED FROM 22ND JUNE 2020

The Immigration Service Delivery, who process visa applications have confirmed that some visa services have resumed from the 22nd June 2020.

During this “initial resumption phase”, the ISD will be accepting Long Stay “D” visa applications which includes Study. This is in addition to the categories considered under the Priority/Emergency cases which include:

  • Emergency visa (e.g. Healthcare professionals, health researchers, and elderly care professionals);
  • Immediate family members of Irish citizens (who are returning to their ordinary place of residence in Ireland);
  • Persons legally resident in the State;
  • Persons entitled to avail of the provision of the EU Free Movement Directive;

This includes short stay visa application for the family members of EU nationals. However, the ISD have not yet resumed the issuance of short stay visas for non-essential travel.

The notice clarifies that in countries where it is not possible to resume visa services due to the differing restrictions which remain in place, the ISD intend to resume accepting applications as soon as it is possible to so.

Advice is given to contact the relevant Irish Embassy/Mission website for up to date information. Many embassies and VFS Global Services remain closed. Our office continues to work closely with our clients on a case by case basis to ensure that the submission of their visa application is facilitated.

This is a very encouraging development and if you or a family member have any queries about applying for an Irish visa, we would encourage anyone with queries to contact our office and we would be more than happy to advise.

The notice can be read in full here.

 

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

IMMIGRATION SERVICE DELIVERY ANNOUNCES POLICY CHANGE ON EXTENSION OF ENTRY VISAS DUE TO COVID-19

The Immigration Service Delivery has issued an updated set of frequently asked questions in relation to Covid-19 and its effects on immigration services in the State.

The document now states that individuals who were recently issued  D category entry visas (prior to 15th March 2020) and who were unable to travel to Ireland during the validity dates of their visa as a result of Covid-19 restrictions, may now apply to amend dates on the approved visa.

The previous position of the Immigration Service Delivery was that such individuals would have to submit new visa applications in the event that they could not travel to Ireland within the validity dates of their visa.

The relevant section states as follows:

“Q 5. What facility will be put in place if I am currently outside Ireland and was recently granted a C or D entry visa for Ireland but I am now unable to come to Ireland during the validity period of my entry visa due to travel restrictions? Can my entry visa be extended or will I have to submit a new visa application?

A. In the case of Long Stay visas issued prior to 15th March 2020 where an applicant was not in a position to travel to Ireland because of the COVID-19 situation, it may be possible to amend the dates on the approved visa. Once we resume accepting visa applications, you should contact the Irish Embassy or Consulate that issued the visa to you.

In the case of Employment/Volunteer/Minister of Religion/Study visas, you should be able to show the Embassy that the reason for your travel to Ireland still applies, before consideration could be given to amending the visa that was issued to you.

Anyone who was issued a Short Stay visa during the same period but was similarly unable to travel to Ireland because of the COVID-19 situation will need to make a new visa application when normal visa processing resumes. However, depending on the period of time that has passed and the circumstances of the particular case, if you decide to re-apply we will consider waiving the fee for the new application.”

Given the long processing times for new visa applications, we at Berkeley Solicitors welcome this development.

The full document can be read here.

If you have any queries about applying for an Irish visa, please do not hesitate to contact our office.

SUPREME COURT CLARIFIES “DURABLE PARTNER” FOR PURPOSES OF EU TREATY RIGHTS APPLICATIONS

The Supreme Court delivered a significant judgement on the 2nd June 2020 in the case of Pervaiz v Minister for Justice [2020] IESC 27. The Supreme Court reviewed the decision of the High Court, with respect to an application for a EU Fam residence card by the non EU citizen partner of a Spanish citizen pursuant to the EU Free Movement of Persons (Regulations) 2015. The Supreme Court overturned the High Court ruling that the 2015 Regulations do not correctly transpose the Citizens Directive by reason of the absence of specific and detailed criteria with regards to the definition of “durable partner”. The Supreme Court also disagreed with the finding of the High Court, which took issue with the fact that the relevant parts of the Regulation simply repeat the words of the Directive itself. The Supreme Court also disagreed that the Minister had applied an unlawful requirement, requiring a period of two years cohabitation in order to meet the definition of a partner for the purposes of the regulations.

A preliminary issue in the proceedings was whether there was an issue that the proceedings were taken in the name of the Non-EU citizen applicant only, without his EU citizen partner being a party to the proceedings. The Supreme Court followed the findings of a number of rulings in the High Court that the applicant had the required standing to issue the proceedings in his own name. The Court also noted that the EU citizen in this case had supported the proceedings on affidavit.

The judgement provides a legal analysis of the differing rights of persons who can apply under the Regulations as “qualifying family members”, such as spouses and direct ascendants and descendants as opposed to “permitted family members” such as partners. The Court highlighted the varying rights of such applicants, with “permitted family members” only having a right to have their application “facilitated” and a “detailed examination of their personal circumstances” undertaken.

The Court held that the definition of “partner” in the 2015 Regulations denotes a person with whom the Union citizen has a connection which is personal in nature, and which is akin to, or broadly akin to, marriage.

With relation to the duration of the relationship and its relevance the Court found:

Thus, a durable partnership will tend to be one of some duration, but that is not to say that the duration of the relationship is, in itself, a defining feature. The length of a relationship will be an important, and sometimes compelling, index of the degree of commitment between the couple, but it is perfectly possible for a committed long-term, what is often called a “serious” relationship, to exist between persons who have known one and other for a short time.

With regards to whether cohabitation is required the Court found:

It would seem to me that cohabitation is in most cases a useful yardstick by which the durability of a relationship is assessed and by which it is possible to test whether persons are genuinely in a committed partnership

With regards to the argument that there is a lack of clarity as to what is required or what conditions need to be met with regards to the duration of a relationship and the period of cohabitation in order to be eligible to apply for a residence card as the partner of the EU citizen the Court disagreed and held: There is, in my view, no lack of clarity in the 2015 Regulations and in the other resources so that an applicant may readily understand the proofs to be met.

The Court found that the Minister did not impose an unlawful requirement of two years prior cohabitation, the Court accepted the Minister’s case that the two year cohabitation is not applied as a strict requirement and is used flexibly. The Court found that any imposition of a two year strict requirement could not be imposed without amending the legislation. The Court did not accept the argument that the two year cohabitation requirement was mandatory in nature.

It is beneficial to applications to now have confirmation that the Minister does not impose a mandatory two year cohabitation requirement and that the Minister should assess each case on its own particular facts.

Please contact the office if you wish to make an EU Fam Residence card application for yourself or your family member.

The full judgement will be published shortly.

SUPREME COURT DETERMINES DEFINITION OF A CHILD FOR PURPOSES OF FAMILY REUNIFICATION

The recent ruling of the Irish Supreme Court in X v Minister for Justice and Equality [2020] IESC 284, was delivered on 7th June 2020. The Supreme Court held that the definition of child for the purposes of Section 56(9) of the International Protection Act 2015 is confined to a biological or adopted child only.

The judgement overturns the finding in the High Court that the definition of child within the International Protection Act could include more far reaching interpretations of “child”, citing the variety and complexity of family relationships.

The Court highlighted the wording of the legislative provision, is “child of the sponsor”. The Court found that the clear reading of this provision limited the scope of children to biological and adopted children. The Court further noted that other children were excluded from the definition of family members for immigration purposes including children over the age of 18. The Court found that the provisions of Section 56(9) where much more restrictive than its predecessor, The Refugee Act 1996.

The Court also found that it would be wrong and incorrect of the Minister to request DNA evidence as a matter of course in respect of refugee family reunification applications. The Court did however find that were there was a legitimate reason or cause to doubt parentage or family relationship it can be an appropriate action of the Minister to request such evidence. The Court noted that the Minister does have guidelines with respect to DNA evidence in respect of D join family visa applications, but that it did not have guidelines in place in respect of refugee family reunification.   The Court noted that DNA goes to the heart of a person’s identity and should only be requested if there is no alternative method to resolve the issues at hand.

The Supreme Court allowed the Minister’s appeal and overturned the decision of the High Court.

If you have any queries regarding how this judgement may affect your application for family reunification, please do not hesitate to contact our office.

NO NEW VISA APPLICATIONS ACCEPTED BY INIS SINCE MARCH 2020

RTÉ News has reported that the Irish Naturalisation and Immigration Service has not accepted any new visa applications as of 20th March 2020 due to Covid-19.

A spokesperson from the Department of Justice was quoted as saying:

“While it will still be possible to apply for an Irish visa online in the normal manner, these temporary measures mean that applicants will not be able to complete their application process. However, any application made online will remain valid until such time as restrictions are lifted.”

VFS Global, which provides a wide range of visa-related services, has also closed many of its Visa Application Centres.

The VFS website states that Ireland has suspended visa services globally as of 23rd March 2020.

This is despite the fact that a limited category of “Priority/Emergency” visas are still being processed, as outlined in INIS notice issued on 21st March 2020. These include professionals, health researchers and elderly care professionals, immediate family members of Irish citizens who are returning to their ordinary place of residence in Ireland, persons legally resident in the State, and persons entitled to avail of the provisions of the EU Free Movement Directive.

In instances where the local Consulate or Embassy is unable to process visa applications falling within these categories due to local Covid-19 restrictions, the Department has arranged to accept visa applications in its Dublin Visa Office.

RTÉ News questioned whether the decision to cease accepting new visa applications since March 2020 was allowing any backlog of applications to be cleared, and asked the Department of Justice to clarify what the situation is today.

The Department responded:

“…it is not possible to state a total number of employment visa applications on hand at a specific point in time, be it December or now. This is because of the fact that visas are received and processed throughout our network of missions globally and not just at the office here in Dublin.”

The spokesperson for the Department also stated that the intention is to resume accepting visa applications as soon as it is safe to do so.

The article can be read in full here.

If you or a family member have any queries about applying for an Irish visa, please do not hesitate to contact our office.

POSSIBILITY OF GRANTING LEGAL STATUS TO UNDOCUMENTED MIGRANTS DISCUSSED AT GOVERNMENT TALKS

The Irish Independent has reported that a proposed scheme to regularise the status of undocumented migrants in Ireland has been discussed as part of Government formation talks between Fianna Fáil, Fine Gael and the Green Party.

According to the article, published by the Irish Independent on 21st May 2020, the parties are in talks to establish a scheme that would allow undocumented migrants in Ireland to apply to regularise their status. The parties proposed that the criteria for such a scheme would be set out within 18 months of the new Government taking office.

At present there has been no final agreement on this scheme and any developments on this matter would be dependent on Fianna Fáil, Fine Gael and the Green Party forming a coalition Government together.

It is estimated that there are currently 15,000-17,000 undocumented people living in Ireland, approximately 2,000 to 3,000 of whom are thought to be children. The Migrant Rights Centre Ireland (MRCI) states that 93% of undocumented migrants are in work, including as many as 29% who work as carers.  The Covid-19 pandemic has also highlighted that many undocumented migrants are employed as key essential workers, working in difficult and challenging situations to keep the country going during this ongoing crisis.

We at Berkeley Solicitors would fully support the implementation of a scheme to regularise the status of undocumented migrants and will publish any future developments on this on our website.

The full article can be read here.

If you or a family member have any queries about your immigration status, please contact our office.