IMPORTANT UPDATE ON BREXIT AND THE RIGHTS OF NON-EU/EEA FAMILY MEMBERS OF BRITISH CITIZENS

In the face of the uncertainty and worry facing many in light of the ongoing Brexit deliberations, the Department of Justice has, on the 29th of March 2019, published a communication aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen, in order to provide an update on the approach they intend to take in the event that the UK leaves the EU in a so called ‘no-deal’ scenario.

The communication defines no-deal as referring to circumstances where there is no further extension of the negotiating period and the UK does not ratify the Withdrawal Agreement before the 12th April 2019, in which case it states there will be no transition period and EU law will cease to apply to and in the UK as of 11pm (midnight CET) on that day.

Alternatively, if a deal is reached, according to the Department’s communication, the provisions of the Withdrawal Agreement on Citizens Rights will apply and EU law will only cease to apply in and to the UK following the transition period of 21 months, up until the 1st of January 2021.

The information note addresses two groups of persons in contemplation of a no-deal Brexit; those with an EU treaty rights application submitted and pending and those holding a valid Stamp 4 EUFam residence card on the 12th of April 2019.

With respect to those who have an application that is still being processed, the information note provides no further information other than to state that such persons are not required to take any action at this time.

For those who are currently holding a valid Stamp 4 EUFam residence card, the information note seeks to reassure that you do not need to worry about losing your right to residence in the State in the case of a no-deal scenario.

It states that, although in a no-deal scenario EU law, in particular the provisions of the European Communities (Free Movement of Persons) Regulations 2015, will no longer apply to you, the Irish government is currently putting in place arrangements to allow a transfer under domestic immigration provisions, which will provide for your continued residence in the State.

It is further stated that the aim of the arrangements being put in place is that you will retain, as far as possible, similar rights to those you have held as the holder of a Stamp 4 EU Fam residence card, including with regard to access to the labour market.

The Department states that they are currently in the process of putting in place a communication strategy that, in the case of a no-deal scenario, will include directly contacting individuals who will be affected by the above.

Further, addressing the matter of UK nationals coming to the State after the 12th of April 2019, if no deal has been made and there is no extension of the negotiating time, the Department provides no information other than to state that they will be issuing further updates on their website in this regard.

The note is also silent in relation to family members of British/UK citizens who have applications for entry visas to the State pending with Irish Embassies/ Visa Offices abroad and the INIS visa office, Dublin. It is unclear as to what the status of such applications will be in the event of a no deal scenario.

If you think you or your family members may be affected by Brexit it is advisable to regularly check the Department’s website, which they state will be updated as developments continue. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

The full text of the information note can be found here. (http://www.inis.gov.ie/en/INIS/Pages/information-note-on-non-eea-family-member-of-uk-citizens-seeking-eu-treaty-rights )

NEW PRACTICE DIRECTION FOR ASYLUM AND IMMIGRATION CASES IN THE HIGH COURT

A new practice direction on asylum and immigration cases issued by President of the High Court Mr Justice Peter Kelly on the 17th December 2018 has created significant changes in the Asylum and Immigration court, and imposed significant new obligations on both solicitors and applicants.

Practice Direction 81 came into force on the 1st January 2019 and applies only to cases on the Asylum and Immigration list. The obligations imposed by High Court Practice Direction 81 are significant and wide-ranging.

Following the issuance of this practice direction, there is a requirement on all applicants to disclose a substantial amount of information and documentation to the Court regarding their case, including details of all previous immigration applications made by any applicant or their family member in Ireland or any other country and details of any previous or current civil or criminal proceedings. This is the case even when the applicant’s family members are not involved in the Judicial Review proceedings.

 

Under the Practice Direction all adult applicants are required to submit a further affidavit providing the information as requested in the Practice Direction. There is also a requirement that the applicant’s solicitor swear an affidavit in relation to the proceedings.

 

The Practice Direction requires the following to have been completed in respect of every new asylum and immigration case initiated after the 1st January 2019.

  • Provide the Court with all relevant material facts by way of a sworn affidavit
  • Provide a full account of the applicant and relevant family member’s immigration history, to include an account of any applications made to the Department of Justice or any other immigration or protection authority both in Ireland or in any other country – this would include previous visa or immigration applications to any State.
  • Exhibit the full immigration file for all immigration/protection applications of every applicant made both in Ireland and other countries. If such documents are not exhibited, a full explanation as to why they have not been exhibited and provide an outline of what attempts have been made to acquire the documents
  • Draw the Court’s attention to any “significant matter of fact adverse to the applicant’s case”
  • Swear that all previous representations made to the Department of Justice or any other immigration authority have been disclosed, or if not, to explain why not
  • Swear that all previous statements or representations made to the Department of Justice or any other immigration authority for the applicant and family members is the truth in every respect, or if not, particularising the extent to which any such statements or representations are untrue;
  • Swear that all statements in the Statement of Grounds are true in every respect, or if not, particularising the extent to which they are not true;
  • Swear that the applicant is aware that it is an offence of perjury to make a statement in any affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading.
  • Identify the applicant’s religion and confirming that the grounding affidavit has been sworn in a specified manner recognised by that religion
  • Swear that the contents and implications of the averments of verification, all statements in the statement of grounds and the details of all previous claims and representations made by or on behalf of the applicant or any member of his or her family, or any solicitor on behalf of any of them, have been fully explained to the applicant by his or her solicitor, and that the applicant fully understands same
  • Specify the language that the applicant understands and confirming that the applicant fully understands the affidavit and its exhibits in the language in which it is sworn.
  • Exhibit any document in a language other than English with a translated document by official translation company
  • Disclose any criminal offences/convictions/proceedings in Ireland or any other country
  • Disclose if the applicant has issued any legal proceedings in any immigration/criminal/civil matter in Ireland or any other country
  • Swear and file a further affidavit in respect of any new material relevant to the court subsequent to the grounding affidavit
  • Attend the substantive hearing of the case in person if ordinarily resident in the State, and if required to orally confirm the averments of verification set out in the affidavits.
  • Applicants may be required to complete and submit to the court checklists of the requirements in the Practice Direction as may be required by the Judge from time to time

 

Berkeley Solicitors has recently contacted all clients who have current Judicial Review cases active in our office to explain the new requirements imposed by the practice direction. If there are any further developments on the new Practice Direction there will be a further update on the Immigration Blog and clients will be contacted.

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

NOTE ON DEPARTMENT OF FOREIGN AFFAIRS WEB PAGE RE BRITAIN’S DEPARTURE FROM THE EUROPEAN UNION

British and EU citizens and their non-EEA Family members understandably have a lot of questions and concerns regarding their status, rights of residence and ongoing rights following Britain’s Departure from the EU.

Highly published negotiations are ongoing between the EU and Britain in order to agree the terms and conditions of Britain’s ultimate departure from the EU.

The primary/initial stages of this negotiation process addressed in principle three main issues, including, guaranteeing citizen’s rights, the rights of those currently living in the UK and UK citizens currently living in the EU.

The Department of Foreign Affairs has placed a section on its webpage specifically dedicated to Brexit and Ireland’s position with regards to same.

A note on same currently outlines that, in principle, certain elements of the draft Withdrawal Agreement have been agreed by the EU and UK negotiating teams.

Of particular note is the agreement in principle that EU law will continue to apply to the UK after it leaves the EU on 29th March 2019 up until 31st December 2020.

The draft proposals relating to the protection of EU citizens rights in the UK outlines that EU citizens and their family members will be required to apply for “status” in the UK within two years from the date of withdrawal- up to 29th March 2021. The draft proposals that the UK will apply a system for the grant of “UK status” under the same requirements as Directive 2004/38/EC. In essence if an applicant- EU citizen/ Non-EEA Family member of an EU citizen would have been/is eligible for residence in the UK under the Directive, then UK status will be issued to them. If applicants would not have been eligible/ met the conditions under the Directive then UK Status will be refused- those refused will be entitled to judicial redress if their applications are refused.

Full agreement of course has yet to be reached in terms of the manner of Britain’s exit from the EU and the impact this will have on the rights of EU and British citizens and their family members.

SPECIAL SCHEME FOR NON-EEA NATIONALS WHO HELD A STUDENT PERMISSION IN THE STATE DURING THE PERIOD 1 JANUARY 2005 TO 31 DECEMBER 2010

The INIS has launched the new scheme for non-EEA nationals who held a student permission in the State during the period 1 January 2005 and 31 December 2010 to apply for permission to remain.This scheme applies to non-EEA persons who commenced their presence in the State lawfully under a student permission with a limited right to work and who maintained that lawful presence for at least two years.

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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.

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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