A notice has been placed on the Department of Foreign Affairs, Embassy of Ireland, South Africa home page stating as follows:

From 28 January 2021 South African passport holders will not be permitted to enter Ireland unless they are in possession of a visa/transit visa (as appropriate), regardless of where they reside or the purpose of their travel to Ireland. 

This is a significant change for South African citizens, who prior to this did not require entry visas in advance of travel to the State.

The notices clarifies:

South African passport holders who are normally resident in Ireland and hold a valid IRP/Registration Card and a valid passport are deemed to meet this visa requirement and do not require an additional visa.

However, all other South African nationals, including those who  have been issued with  employment permits but have not yet travelled to Ireland to register their immigration permission will now need to apply for a visa to enter the State as an employment permit holder.

South African nationals already legally resident and registered in the State will use their IRP card to re-enter the State as is now standard practice for all non-EEA legal residents in Ireland.

This will significantly change the process for South African nationals to travel to Ireland. Nationals of South Africa will now the face delays and back logs in the processing of visa applications to enter and reside in Ireland, which are experienced by nationals of visa required countries.

The note confirms visas will only be granted for a limited set of priority and emergency cases.  Short-stay visa applications will only be processed for emergency or essential travel for a limited number of categories including medical personnel, immediate family members of Irish citizens, persons legally resident in Ireland, and persons entitled to avail of the provision of the EU Free Movement Directive

It is stated that non-priority and non-emergency applications for Long Stay D visas and Preclearance Applications will continue to be accepted but no decisions will issue until at least 5 March 2021.  It is indicated that this date may be extended further depending on the situation at that time. Person as also notified that circumstances are subject to change at short notice.

It is unclear if this suspension of decision relates to nationals of South Africa only or to all non-priority and non-emergency applications for Long Stay D visas and Preclearance Applications.

It is also unclear if South Africa is now a visa required country in the Irish immigration context or if this is a temporary change during the Covid 19 Emergency.

South African nationals with a genuine, humanitarian  reason  or emergency requiring urgent travel to Ireland are advised to  contact the Embassy immediately for advice and consular assistance.

If this affects you or your family please get in contact with us to discuss your case.

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

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

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

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

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

Court of Appeal Judgment

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

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

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

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

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

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

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