UPDATE ON CONTINUED DELAYS IN PROCESSING OF VISAS FOR FAMILY MEMBERS OF EU CITIZENS

There are long and continued delays in the processing of visas for the family members of EU Citizens pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. We have highlighted this issue on our blog on several previous occasions.

 

Many of those affected by these continued delays have issued judicial review proceedings in the High Court to challenge the very substantial delays in the processing of the visas for their family members.

 

Our offices are representing our clients in such matters and have taken a number of cases to the High Court to challenge the unlawful delays, which are causing severe stress and anxiety to applicants and their family members, who have been separated for long periods of time.

 

The cases of Atif and Mahmood v Minister for Justice and Equality and Ahsan and Ors v Minister for Justice and Equality [2016] IEHC 691 are scheduled to be heard by the Court of Appeal in December 2017.

 

These cases are being treated as test cases in relation to the delays in the processing of visas for family members of EU Citizens pursuant to the Directive and Regulations.

 

There are a large number of cases travelling together in the High Court and those cases have been adjourned to the 22nd January 2018, to await the progress of the test cases in the Court of Appeal.

 

The Court of Appeal’s judgment in these cases will have a large bearing on the outcome of a very large number of cases and pending visa applicants for the family members of EU Citizens to join or accompany their EU Citizen family members to Ireland.

 

We would submit that the Directive makes clear that State’s should operate an “accelerated procedure” for the processing of visas for family members of EU Citizens and the 2015 Regulations specifically allow for an accelerated procedure for applications from permitted and qualifying family members.

 

We submit strongly that the continued and extremely long delays in the processing of such visas is clearly in breach of the Directive and Regulations and the rights of EU citizens to free movement within the Member States.

 

We will keep you updated as matters progress in the Court of Appeal.

 

BERKELEY SOLICITORS

SUPREME COURT RULING ON THE RIGHT TO WORK FOR ASYLULM SEEKERS

On Tuesday the 30th May 2017, The Supreme Court ruled in favour of a Burmese man’s appeal over the legal ban preventing him from working or seeking employment while under asylum seeker status. This is major depart from the current legislative position that prevents asylum seekers from working while they are in the asylum process.

The application had come to Ireland in 2008, and was initially denied his application for refugee status. After appealing this decision, he lived in direct provision for 8 years, suffering from depression, and “almost complete loss of autonomy.” As he was not allowed to work while under asylum seeker status, he believed that this, combined with the €19 weekly allowance, negatively impacted on his self-worth, personal dignity and individual development. After a lengthy delay in the processing of his appeal, he was eventually granted refugee status last September 2016 after re-hearings before the Refugee Appeals Tribunal when the High Court had found errors in the way in which his applications were decided.

The case against the legal ban preventing this man, as an asylum seeker, from seeking or obtaining employment, was brought by Michael Lynn SC, against the Minister for Justice, with the Attorney General and the Irish Human Rights and Equality Commission as notice parties.

While the Supreme Court unanimously found in favour of the man, the matter has been adjourned for six months so that legislature can be formed in direct consideration of the case. The court found the ban on asylum seekers searching for employment, as stated in the Refugee Act, IS fundamentally contradictory of the constitutional right to seek employment.

Mr Justice Donal O’Donnell stated that he believes that when there is no time limit for processing an asylum application, that does not only severely limit a person’s right to seek employment but “removes it completely.” He follows that the differences between citizens and asylum seekers does not justify the inequality of this matter, in that the latter is ultimately excluded from all possibilities of employment.

This decision will have major knock-on effects for all asylum seekers in many ways. It will force the Oireachtas to pass legislation permitting asylum seekers to work after a specific prescribed time period in the asylum process, bringing Ireland in line with other EU countries.

We celebrate this judgement which we believe will help towards ending the current unnecessary and unfair segregation of asylum seekers in Ireland.

We happily congratulate the individual applicants who took this case, and their talented legal team!

BERKELEY SOLICITORS

CHANGE TO CRITERIA FOR RESIDENCY PERMISSION FOR DE FACTO PARTNERS OF IRISH CITIZENS

The INIS have altered the eligibility criteria for applications for residency for the de facto partners of Irish citizens.
Applicants are now required to have cohabited together with their Irish citizen partner for a period of one year. This has been reduced from the previous two year requirement.
A new application form has also been published and is now to be used when making the de facto residency permission application. The application form includes statutory declarations to be sworn by the applicant, the Irish citizen and a supporting witness.
The application form and a guidance note can be found on the INIS web page.
If you have queries or wish to submit an application for residency permission on as the partner of an Irish citizen do not hesitate to contact the office.

UPDATE ON THE CASE OF MAHMOOD AND ATIF AND CONTINUED DELAYS IN THE PROCESSING OF VISA APPLICATIONS FOR FAMILY MEMBERS OF EU CITIZENS

We have written on our blog previously about the case of Mahmood and Atif v Minister for Justice and Equality, the judgment of the High Court issued on 14th October 2016.

It is our understanding that this ruling of the High Court has been appealed to the Court of Appeal by the Respondent.

We note that this case is to be mentioned before the Court of Appeal in late March 2017, to be given a date for hearing of the appeal.

We understand that the Respondent has sought a stay on the High Court order that the visa applications in this case are processed within a six-week period. It is understanding that the Court of Appeal has refused to grant such an order.

We hope that a decision in the Mahmood and Atif case is issued to the applicants within the time frame ordered by the High Court in these circumstances.

We note that the Court of Appeal may go on to consider the appeal application in Mahmood and Atif on the principles raised by the case.

Our clients still continue to experience unreasonable and unlawful delays in the processing of visas for their family members under Directive 2004/38/EC and The European Communities (Free Movement of Persons) Regulations 2015 and we submit that such delays are inexcusable and unjustifiable.

If you or your family are impacted by these issues or similar issues, please do not hesitate to contact us to discuss this in more detail.

THE INTERNATIONAL PROTECTION ACT 2015 AND ITS IMPACT ON REFUGEE FAMILY REUNIFICATION

The International Protection Act 2015, which came into effect on 31st December 2016, provides for a single application procedure for international protection. Under Section 2 of the Act, a person who qualifies for international protection is “a person who is either:
(a) a refugee and in relation to whom a refugee declaration is in force, or
(b) a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force”

Some Key changes for Asylum Applications
• All information for all three applications for Refugee Status, Subsidiary Protection and Permission to remain under a single procedure will be taken at the same time (this means they will be processed at the same time).

THE AMERICAN PRECLEARANCE PROCEDURE MUST BE SUSPENDED

The United States operates border preclearance facilities at a number of ports and airports around the world, including Dublin Airport and Shannon Airport. The preclearance facilities at Dublin Airport and Shannon Airport are now under intense scrutiny following President Trump’s recent Executive Order suspending all refugees’ entry to the US for  a 120 day period,  and issuing an indefinite ban on refugees from Syria and a 90-day ban on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

President Trump’s blanket immigration ban based on nationality is unlawfully discriminatory, and in breach of our State’s obligations under the Irish Constitution, the European Convention of Human  Rights, and the Charter of Fundamental Rights.  It is now a matter of urgency that the Irish Government takes immediate steps to cease this practice on Irish soil. Otherwise, Ireland will be facilitating the US’s unlawful immigration practices, and will be open to liability to each individual affected.

Ireland initially entered an agreement with the US in 1986 to operate pre clearance facilities at Shannon Airport, and subsequently at Dublin Airport also. The Aviation (Preclearance) Act 2009 now governs the area.

The Act directs that the Minister for Transport may designate places within an airport in the State as an area within which preclearance to  the US may be carried out by Preclearance Officers and  Preclearance Officers are United States Customs and Border Protection officials.

The Act directs that Preclearance Officers may take and process applications from travellers seeking permission to land in the US, ask for the production of travel documents and other documents supporting the traveller’s application for permission to enter and examine such documents when produced, ask questions relating to the traveller’s eligibility to enter the United States, search such traveller and his or her goods,  arrest persons without warrant, where he or she reasonably suspects that the person poses an immediate threat (including the possession of a weapon) to the safety of officers or other persons in the preclearance area, and  review or revoke permission to enter the US.

The Act provides wide powers of detention to the Preclearance Officers, who may detain any person without warrant where  the Preclearance Officer reasonably suspects that the person has committed an indictable offence under the laws of the State or obstructed/attempted to obstruct a Preclearance  Officer in the performance of his or her functions under the Act.

Furthermore the the Preclearance Officer may request the assistance of an Irish law enforcement officer with respect to arresting a person who is deemed a threat, and the  Act directs that the Irish law enforcement officer shall assist a preclearance officer.

The Act therefore permits wide ranging powers of arrest and detention without warrant in the Preclearance area, and in some instances requires members of An Garda Siochana to assist.

The wide ranging powers given to  the US Preclearance Officers while operating on Irish soil is deeply troubling in light of the draconian US ban on refugees and persons from certain designated States (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

We call on Mr Kenny’s urgent intervention to suspend the operation of the The Aviation (Preclearance) Act 2009  for the duration  of President Trump’s immigration bans.

Berkeley Solicitors Immigration Team

CONCERNS ARE RAISED ON LEGALITY OF THE AMERICAN PRECLEARANCE PROCEDURE AT IRISH AIRPORTS FOLLOWING PRESIDENT TRUMP’S TRAVEL BAN

In the recent days, President Trump has enacted an Executive Order suspending all refugees’ entry to the US for  a 120 day period,  an indefinite ban on refugees from Syria and a 90-day ban on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Citizens from these countries will not be issued visas to the US, and will be stopped at the point of entry at US airports.

Dublin and Shannon airports are among a small number of sites in the world where US preclearance procedures are carried out in respect of passengers travelling to the US. Thus, Ireland now finds itself on the frontline in respect of the implementation  of Mr Trump’s draconian orders, which are being condemned by politicians internationally and by our own government members alike.

Minister Katherine Zappone  was quick to voice her concern that discrimination may be happening at US preclearance sites at Irish airports, and she called for an urgent review of the American pre clearance procedure in Irish airports, and our Taoiseach Enda Kenny yesterday ordered a “complete review” of the pre clearance procedure.

A number of Irish NGOs, including Amnesty, the Immigrant Council of Ireland, the Irish Refugee Council, FLAC, Nasc, the Migrants Right Centre and The Irish Council of Civil Liberties have released  a joint statement voicing their concern regarding the pre clearance procedure  that person’s rights under the Constitution, EU law or the European Convention on Human Rights may be under threat. The NGO’s also called on the Minister for  Foreign Affairs and the Minister for  Justice and Equality to clarify the role of Gardaí and immigration officials in the US pre-clearance process.

Berkeley Solicitors strongly condemns the discriminatory immigration policies of the American government being carried out on Irish soil. We are very concerned that Irish immigration officers may be required to facilitate the operation of these policies. We call on the Government to immediately cease the operation of the pre clearance procedure while Mr Trump’ s travel ban is in  place.

BERKELEY SOLICITORS IMMIGRATION TEAM

CURRENT SYSTEM FOR APPLICATIONS FOR STAMP 4 FOR NON VISA REQUIRED DE FACTO PARTNERS OF IRISH CITIZENS

This article will highlight the current system for applications for Stamp 4 residency for de facto partners of Irish citizens living together in Ireland. In particular, those applicants who are not required to obtain a visa to enter Ireland.

At present, our office is currently experiencing an increase of clients seeking advice in relation to decisions refusing their de facto partners application, based on irrelevant considerations.

THE COURT OF APPEAL HAS ISSUED TWO JUDGMENTS WHICH HAVE FAR REACHING CONSEQUENCES FOR APPLICATIONS UNDER SECTION 4(7) OF THE IMMIGRATION ACT 2004

Luximon v. Minister for Justice & Equality (Court of Appeal – 14/12/2016)

Balchand v. Minister for Justice & Equality (Court of Appeal – 15/12/2016)

The Court of Appeal (Finlay Geoghegan J, Peart J & Hogan J) delivered important judgments on 15th December 2016 in the cases of Luximon & Ors -v- The Minister for Justice & Equality [2016] IECA 382 and Balchand & Ors -v- The Minister for Justice and Equality [2016] IECA 383.

These two cases concerning the question of whether, in determining an application for permission to remain by a non-EEA national, made pursuant to section 4(7) of the Immigration Act 2004, the Minister is obliged to consider the applicant’s rights to the respect for private & family life as guaranteed under Article 40.3 of the Irish Constitution and Article 8 of the ECHR.

The Court of Appeal held that the High Court Judgment of Barr J in Luximon (20 March 2015) IEHC [2015] 227was correct in finding that there was such an obligation on the Minister.

These judgments would appear to mainly affect people who are resident in Ireland on student permission or those who have overstayed their student permission, specifically those who wish to continue to live and work in Ireland after their student permission expires.

INTERNATIONAL PROTECTION ACT 2015- NOTICE OF COMMENCEMENT

The Irish Naturalisation and Immigration Service (INIS) have issued an information notice for applicants for family reunification. The notice advises that the International Protection Act 2015 (2015 Act) will be commenced by the Tánaiste and Minister for Justice and Equality on 31st December 2016. The procedure and statutory framework for the assessment of applications for family reunification for recognised refugees is set to be overhauled by the commencement of this Act.

It is important for family reunification applicants to note that once their application has been received by the Minister for Justice and Equality before commencement of the 2015 Act, these applications will be processed under the existing legislation, that is the Refugee Act 1996.

New applicants or those considering making an application for family reunification should be aware that any applications for family reunification received by the Minister after commencement on 31st December 2016 will be processed under the 2015 Act.

In cases where an application is made before commencement of the 2015 Act and permission for family reunification is granted after the Act’s commencement, the approved family members will be given permission to enter and reside in the State for a period of no less than one year, provided the sponsor’s permission is in force and provided the sponsor is entitled to remain in the State.