VISA DECISIONS AND WAITING TIMES

For most visas, the Department indicates that you can expect a decision within eight weeks after it was received by the Irish Visa Office, Embassy or Consulate you sent it to. However, in the experience of our office, most visa applicants experience much long processing periods on their visa applications.

According to information on the INIS website, as of July 3rd 2018, business and employment visa applications received by the 11th of June 2018 are currently being reviewed.

Join family applications received by the INIS offices on the 7th of February 2018 are currently being reviewed.

According to the INIS website, applications which take longer than average if you have not submitted the necessary supporting documentation, your supporting documentation needs to be verified, because of personal circumstances, for example if you have a criminal conviction. Processing times can change during the year, for example before holiday periods.

Also, according to the INIS website, if the sponsor for the application in Ireland is an Irish citizen they aim to process your application within 6 months after they have receive all the necessary documentations. If the sponsor  in Ireland is entitled to immediate family reunification they also aim to process the application within 6 months after they receive all your necessary documents. They indicate that all other sponsors applications are aimed to be processed within 12 months after receiving all the necessary documentations.

In the experience of Berkeley Solicitors, some applications for a Join Family visa take much longer than the five month period suggested on the INIS website.

Depending on which Embassy the application is being processed, many join family visa applications take up to one year or longer.

We are aware of a number of visa applicants who have waiting over two years on their first instance decision, and have issued court proceedings due to the delay.

At Berkeley Solicitors, we do our best to assist our clients through this lengthy visa application process, and where necessary we can advise on issuing proceedings due to unreasonable delay.

DIVISION OF THE DEPARTMENT OF JUSTICE AND EQUALITY

Minister Charlie Flanagan has announced he would implement a key recommendation from the latest report of the effectiveness and renewal group from the Department of Justice. The report of the group said the close relationship between senior department of justice officials and senior Gardaí means there is a sense of them being “in the trenches together”. The group proclaimed an interdependent relationship between the justice minister and political system generally and the Garda Síochána has evolved.

Following the report’s publishing one of the key recommendations that shall be introduced by the aforementioned Minister Charlie Flanagan is of relevance to many of our clients here at Berkeley Solicitors. The recommendation is question involves the internal separation of the department into two divisions, justice and home affairs, and a complete reorganisation of work areas. The report’s findings were contributed to by Michael Kirrane, Director General, Irish Naturalisation Immigration Service.

Home affairs will be responsible for policing, crime, national security, criminal law reform prisons and probation, immigration and international policy. Justice will cover the justice sector, civil law reform, courts, asylum and integration and equality. The newly formed divisions will have their own deputy secretary general, with the department led by a single secretary general.

Immigration law was also referenced in other areas of the report, such recommendations are important to us here at Berkeley Solicitors. The report is initiating the creation of the Irish Naturalisation and Immigration Service and the Irish Prison Service into separate agencies which, in their opinion, is an idea which should be examined. The Irish Naturalisation and Immigration Service (INIS) and the Irish Prison Service are very substantial public-facing services operating largely autonomously, but still as part of the Department.

The report raised the issue of whether the Department should be undertaking the operational aspects of this work. The report concluded to examine whether these operations should be converted into separate agencies, while retaining the policy function relating to them within Home Affairs. The implementation of these steps, along with the other recommendations in the aforementioned report will enable and expedite the Department in achieving the objectives of the Toland Report. The report states that they expect the restructuring steps to take less than nine months in total, with the first three months in preparation.

 

Berkeley Solicitors

IRELAND’S POPULATION GROWTH FIVE TIMES EU AVERAGE

According to new figures Ireland’s population growth was more than five times the EU average in 2017. The number of residents in total in the Republic of Ireland rose by 53,900 last year to nearly 4.84 million, an increase of 1.1%. The EU average is a staggering 0.2% in comparison. Ireland had the fourth highest rate of population growth within the EU in the year 2017. However, Ireland holds the distinct title of having the highest birth rate of any EU member state with 12.9 births per 1,000 population.

The only other countries to have experienced higher and more drastic rates of population growth are Malta, Luxembourg and Sweden. A factor contributing to the increase in figures for these countries comes from the impact of immigration in those countries. With this in mind Ireland had the highest rate of natural increase. This meaning there was an excess of births over deaths in Ireland in 2017. This is not the case for 13 Eu member states such as Germany, Italy, Spain and Finland where the death rates outweigh the birth rates. The EU’s overall natural population falling.

Ireland has the youngest population of all Europeans as well as retaining its position as having the lowest death rate in the EU. The findings show with 6.3 deaths per 1,000 population compared to the average of 10.3 deaths per 1,000 in the year 2017. Overall the population of the EU increased in 2017 from 511.5 million to 512.6 million, an increase of 0.2%. The CSO has released its prediction that Ireland’s population will continue to grow until 2051 when it will reach almost 6.7 million.

Berkeley Solicitors

OIREACHTAS COMMITTEE REPORT ON MIGRANT FISHERMEN

The exploitation of undocumented workers in the Irish finish industry was the subject of research carried out by The Migrant Rights Centre which found that two thirds of migrant fishermen work more than 100 hours a week, and receive an average pay of €2.82 an hour, and often furthermore suffer physical and verbal abuse.

The Migrant Rights Centre Ireland has worked with the migrant fishermen employed on Irish boats to advocate and lobby on their behalf.  This work has resulted in the publication of the ‘Report on the situation of non-EEA crew in the Irish Fishing Fleet under the Atypical Worker Permission Scheme’ by the Joint Committee on Business, Enterprise and Innovation.

The Committee has made it very clear that the abuse and exploitation can go on no more.

The Committee made a number of recommendations to address this ongoing exploitation in the Irish fishing industry. One of the recommendations is that all undocumented non-EEA nationals in the Irish finishing industry should have their status regularised within six months.

Eden McGinley, MCRI Director, stated “We welcome this report and its recommendations many of which match our own assessment of the issue. In particular we welcome the recommendation that a worker not be tied to one employer – it is essential that workers be able to leave exploitative employers.”

Eden McGinley also stated that “The committee also recommended the vital provision of extra resources to the Workplace Relations Commission (WRC) to continue inspections, highlighting the need for access to interpreters, and suggested that one Minister and Government department be given overall responsibility in this area. MRCI calls on Minister Heather Humphreys and the Department of Business, Enterprise and Innovation to take up this role.”

At Berkeley Solicitors we have acted for a number of clients who have experienced such exploitation working in the fishing industry. We would also call on the government to implement these important changes as recommended by the Committee to protect this very vulnerable and exploited group. We commend the MCRI for the good work they have done on behalf of the undocumented fishermen.

Berkeley Solicitors

IMPORTANT DEVELOPMENTS ON THE RIGHT TO WORK FOR ASYLUM SEEKERS

 

The Government is to lift some of the restrictions facing asylum-seekers seeking work and allow for greater access to social welfare payments and alternative accommodation. Last May it was declared by the Supreme Court that the ban on asylum seekers entering employment was unconstitutional “in principle” and the cabinet agreed to lift the ban last November, in line with a European directive.

Currently asylum-seekers who are in direct provision in Ireland currently have a weekly allowance of €21.60 and can buy food using a recently introduced points system. As of December 2017, there are 5,096 people within direct provision. Before the 20-year-old ban preventing people seeking asylum from working was lifted the direct provision program was undeniably restrictive and rigid. About 3,000 people face a wait of about a year and a half for a decision on their asylum claim.

The proposals regarding the conditions under which the ban will be lifted will be announced by Mr Flanagan and Minister of State David Staunton. The proposals come a year after the Supreme Court found the ban on asylum seekers working in this country was unconstitutional. The ban however is not lifted in its entirety. There are still restrictions on certain occupations that cannot be accessed by asylum-seekers within direct provision. Asylum seekers will be able to seek any form of employment except with An Garda Síochána, the Defence Forces or the Civil Service.

Government claim the decision to deny access to the Garda, the Defence Forces and the Civil Service was due to the permanent nature of the positions. “It is not clear whether all asylum seekers will become permanent residents and therefore until that is clear, they will not be in a position to work in those three sectors. However, they will be able to work elsewhere.” With this in mind it is still a massive step forward regarding the status of asylum-seekers. Access to social welfare payments will also be permitted to those who find employment.

Granting people, the right to work brings Ireland into line with other European countries. The governments justification for the ban in Ireland has been that it will create a pull factor, increasing the number of asylum seekers looking to seek refuge in Ireland. It is the topic of constant debate.

People can also be asked to pay towards the cost of their direct provision accommodation if their earning exceeds certain limits, but this contribution will be capped at around €35 per

day, the cost to the state of providing direct provision per person. If a person is granted permission to gain employment and have been working for over 12 weeks, their direct provision allowance of €21.60 will be reduced or withdrawn. Children’s allowance will not have their allowance taken and will not be charged for their accommodation if their parents are working.

Refugee support groups are welcoming new measures which open the Irish labour market to asylum seekers.

We at Berkeley Solicitors also welcome this development which we submit now brings Ireland in line with our legal obligations towards asylum seekers. We believe that it is logical that asylum seekers are given the opportunity to support themselves while they await the outcome of their application for protection. It will also create a fairer and more humane asylum system.

Berkeley Solicitors

IMMIGRATION IN IRELAND ANNUAL REVIEW 2017

The Department of Justice and Equality’s annual review of Immigration in Ireland for 2017 provides a detailed look at changes made throughout the year to ensure that immigration law in Ireland is relevant, current and in line with EU legislation. Issues which were dealt with in the immigration in Ireland annual review included migration to Ireland, citizenship, common travel area, international protection, and refugees and asylum seekers.

The 2017 review confirms that due to the Ireland’s growing economy and positive international reputation this country is attractive to migrants who wish to work, study or settle here. Our rapidly growing immigration numbers are evidence of this. Visa applications have also increased dramatically and the number of people from non-EU countries legally living here increased by 13,000 between 2016 and 2017.

In 2017, 8,199 people became Irish citizens. The citizenship ceremonies took place the University of Limerick and the Convention Centre in Dublin. Since the citizenship ceremonies began in 2011, over 110,000 people have received their citizenship certificates at the ceremonies. Another topic discussed at the immigration in Ireland annual review was regarding the common travel area. Keeping the common travel area with the UK is one of the key Brexit priorities of Government, and this is reflected in the EU-UK joint report on the progress during Phase 1 of the Brexit negotiations. During the negotiations, it was recognised that Ireland and the UK may continue to make arrangements relating to the movement of people within the CTA and that both countries will fully respect the rights of people under EU law.

International protection is a topic that immigration law centres around. The International protection Act 2015 came into effect on the 31st of December 2016. The Act simplifies and streamlines existing international protection arrangements in Ireland. Applicants will be able to get a final decision on their protection application in a more straightforward and timely fashion. Two key developments in 2017 as a result of the Act were the establishment of the International Protection Office and the International Protection Appeals Tribunal. The IPO investigates applications for international protection. The IPAT hears appeals on decisions by the IPO. As part of Government response to the migration crisis, the Irish Refugee Protection Programme accepted 755 people into the country in 2017. Ireland does what it can to provide a safe haven for up to 4,000 under EU Relocation and Resettlement programmes. A significant number of people will qualify under family reunification.

In June 2017, the third and final report on the progress made on improving the protection process was published. The report showed that 133 for 173 recommendations have been fully implemented and 36 recommendations are in the process of being implemented or are partially implemented. This means 98% of the recommendations have been fully or partially implemented. The average length of time spent in State-provided residency centres has been reduced. In 2015, the average was 38 months. At the end of 2017, it was 23 months. This is expected to get shorter as the provisions in the Internationals Protection Act take effect.

At Berkeley Solicitors we support an effective, fair and transparent immigration system.

Berkeley Solicitors

AMENDMENTS TO THE POLICY ON VISA APPLICATIONS FROM LIBYAN NATIONALS

In 2014 Ireland’s Ministry of Justice implemented restrictions on considerations of Irish visa applications for Libyan nationals. Libyan nationals seeking to come to Ireland were rejected based solely on their Libyan nationality, even when fitting the criteria to enter Ireland being from any other country. The restrictions were once again reviewed in 2017 and were defended by the Ministry of Justice and were left unchanged. Former Minister for Justice and Equality Frances Fitzgerald said she took into account the ‘ongoing security situation in Libya’ and this is true even today.

While certain restrictions on consideration of Irish visa applications have been in place since August of 2014 following a review the new Minister for Justice and Equality decided to extend the categories of applicants who can be considered. This is a massive victory for Libyan nationals and will greatly impact some of our clients here at Berkeley solicitors. The Minister for Justice and Equality has set out distinct categories which will be available for consideration. While there are 7 categories listed only 3 will be relevant to most of our clients here at Berkeley solicitors.

The first category allows individuals from Libya to enter the country if they are studying or training. Applications intended for all forms of study or training will be subject to consideration. The second category is regarding visa applications from immediate family members of those who are Irish citizens, long term Irish residents, and citizens of the EU. Under this category immediate family members consist of spouses or partners, parents and dependent children. The third and final category relating to our clients are visa applications supported by Irish Government Departments and State Agencies. These applications will be considered with evidence of sponsorship.

The change regarding Libyan visa applications has been met with positive feedback from many and has been highly praised for being a lot less discriminatory. Minister for Justice and Equality, Charles Flanagan, stated ‘an appropriate balance must be struck between State security and individual applicants who wish to come here’ and with the blanket ban now lifted they may have found it. Applicants who wish to apply for a visa in Ireland in Libya have a specific set of instructions to follow in order to gain access to Ireland. There are important notes set out by the Department of Foreign Affairs and Trade in order for the visa application to have a fair consideration. All of the information regarding Libyan visa applications can be accessed on the Department of Foreign Affairs and Trade website.

Lifting the restrictions against Libyans entering Ireland allows for families to be reunited with loved ones and gives the people of both nations a choice.

We here at Berkeley solicitors welcome the change as we believe it restores rights under the European Convention of Human Rights and our own Constitution and is non-discriminatory.

Berkeley Solicitors

REGISTRATION WITH THE IRISH NATURALISATION AND IMMIGRATION SERVICE

If you are not an-EU/EEA and non-Swiss citizen and you wish to stay in Ireland for a period longer than 90 days you must apply for immigration permission and if successful register. For those who do not know there are a variety of categories under which immigration permission can be requested. The most common of which being to study, to work or to live with your spouse, partner, child or family member.

DEPENDENCY IN EU FREE MOVEMENT LAW – THE KHAN CASE

Berkeley Solicitors is acting for a number of applicants who currently have Judicial Review proceedings pending in the High Court challenging decisions of the Minister for Justice and Equality to refuse residence cards pursuant to to Directive 2004/38EC and the European Communities (Free Movement of Persons) Regulations 2015.

The cases addressing the issue of dependency under EU free movement law have been placed in a holding list, following the case of Khan v. Minister for Justice, (Unreported, High Court, Faherty J., 27 October 2017). The Khan case is currently under appeal to the Court of Appeal.

In Khan v. Minister for Justice, the High court granted an order of certiorari of a decision refusing residence cards to the parents of an adult EU citizen as qualifying family members, subject to establishing dependency.

The High Court held that the Minister had applied the wrong test that ‘it was impossible to live at a subsistence level’.

The meaning of dependency in EU free movement law is a well established principle.

In  Case  C-1/05 Jia v. Migrationsverket the Court of Justice defined dependency for the purposes of Directive 2004/38/EC as “the need for material support” to meet “essential needs”.

In Jia, there is no reference to it being a requirement of dependency that it was impossible to live at a “subsistence” level if financial support from the EU citizen or his or her spouse was not maintained. The Jia test does not require that the family members have to be totally dependent on the EU citizen.

In the Khan case, the High Court relied on the following paragraph of the CJEU in Reyes:

“In order to determine the existence of such dependence, the host member state must assess whether, having regard to his financial and social conditions, [the family member] is not in a position to support himself” (emphasis added by Faherty J.).”

We would submit the test for dependency in this area of law is very well established. Decisions by the Minister applying the wrong legal tests may therefore be subject to challenge before the courts.

Further updates on the Khan case will be posted in due course.

HUMANITARIAN ADMISSION PROGRAMME (IHAP) NOW OPEN FOR APPLICATIONS

Berkeley Solicitors, immigration law specialists, welcome the newly announced Humanitarian Admission Programme (IHAP). This programme is undoubtedly a positive development for many of our clients who could potentially benefit under this new scheme.

The Humanitarian Admission Programme 2, also known as “IHAP” allows naturalised Irish citizens, programme refugees, persons with Convention refugee status, and subsidiary protection status to apply for immediate eligible family members to join them in the State between May 14th 2018 and 30th June 2018. The scheme will therefore be closed on the 30th June 2018.

Up to 530 vulnerable family members will qualify for admission under the scheme. Beneficiaries accepted under the IHAP receive Programme Refugee Status from the Minister under the Irish Refugee Protection Programme.

In a press release dated the 12th May 2018 it is stated that the purpose of the scheme is to meet Ireland’s commitments in relation to the ongoing migration crisis. With this in mind, the scheme is limited to beneficiaries in states where they are in the “most vulnerable situations internationally”. In the press release Minister of State David Stanton TD states that:

“The IHAP is a humane and flexible response to the needs of those fleeing high-risk areas and will facilitate their reunion with family members in Ireland. The Programme reaffirms the Government’s commitment and ability to respond positively to humanitarian crises. Persons admitted under this programme will be part of the IRPP and will therefore receive a status in their own right rather than a dependency status on their family member. This is important for their long term integration and sense of belonging in our communities.”

The list of eligible countries is based on the UNHCR Annual Global Trend Reports which lists the top ten major source countries of refugees. INIS in their FAQ on the IHAP instructs that the current list of countries is “subject to change”. Beneficiaries must be nationals of one of the following countries to be eligible under the scheme:

  • Syria
  • Afghanistan
  • South Sudan
  • Somalia
  • Sudan
  • Democratic Republic of Congo
  • Central African Republic
  • Myanmar
  • Eritrea
  • Burundi

Those who are from one of the above eligible States must also fall under one of the categories provided under the Scheme. These are as follows:

  • Adult Child (unmarried and without dependants)
  • Minor Child (where the Minor Child is not eligible for reunification with a sponsor under the terms of the International Protection Act 2015. The Minor Child must be unmarried and without dependants)
  • Parent (where not eligible for reunification with a sponsor under the terms of the International Protection Act 2015)
  • Grandparent
  • A Minor Child for whom the Sponsor has parental responsibility (e.g. Orphaned Niece/Nephew/Grandchild, Sibling) (In certain circumstances, where a Sponsor does not have sole parental responsibility, the consent of the person that shares responsibility will be required)
  • A vulnerable close family member for whom the Sponsor is the primary caregiver and who is not part of another family unit.
  • The Sponsor’s spouse or civil partner as recognised under Irish law (where not eligible for reunification with a sponsor under the terms of the International Protection Act 2015) or the Sponsor’s de facto partner (may be granted to both opposite and same sex partners who have been together in a relationship similar to marriage or civil partnership and have a mutual commitment to a shared life together to the exclusion of all others. The Sponsor must be in a position to provide sufficient evidence of a durable relationship.)

Under the IHAP scheme the Sponsor (i.e. the person residing in Ireland who is inviting a family member in the State) must themselves meet a number of requirements.

  • The Sponsor must have been granted Convention refugee status, programme refugee status or subsidiary protection status in Ireland or be an Irish citizen
  • The Sponsor must be residing in Ireland and complete the IHAP proposal on behalf of the family member they wish to join them in Ireland (i.e. the beneficiary)
  • The Sponsor must be a person of “good character”.

While there are no explicit minimum financial requirements place on sponsors, such as a certain minimum income, nominations will be prioritised where the Sponsor is able to demonstrate that they can provide accommodation for their family member in Ireland. This is due to the ongoing housing crisis in Ireland.

There are no fees that must be paid by the sponsor to make an IHAP application. The sponsor may incur other costs relating to postage or translation for documents, if necessary.

One important point to note is that a proposal for a family member under  IHAP cannot be made if there is an ongoing application for family reunification under the International Protection Act, 2015.

The introduction of IHAP is seen as a welcome change by Berkeley Solicitors. We hope that our clients eligible under this scheme have the opportunity to benefit. For further information on the scheme please see the INIS FAQ on IHAP and the IHAP application form., or contact our office by email or phone.