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.

LONG STAY VISA APPLICATIONS AND THE FLEXIBILITY OF THE INIS POLICY DOCUMENT ON FAMILY REUNIFICATION, DECEMBER 2013

The INIS Policy document on Non-EEA Family Reunification, published in December 2013 provides a comprehensive statement on Irish national immigration policy in the area of family reunification. The policy lays out a number of overarching principles to the Minister’s assessment of applications for Non-EEA family members to live and reside with their Irish or legally resident family members in Ireland, as well as setting a number of specific thresholds relating to finance, income and dependency.
We submit that this policy should be applied in a fair and flexible fashion, taking account of the salient facts and circumstances of the particular applicant and their family members. The Executive Summary to the policy itself states “Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case”. “It is intended that family reunification with an Irish citizen or certain categories of non-EEA persons lawfully resident in the State will be facilitated as far as possible where people meet the criteria set out in this policy although of course each case must be considered on its merits”.

UPDATE ON VISA APPLICATIONS PURSUANT TO DIRECTIVE 2004/38/EC AND THE EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGULATIONS 2015

We have recently commented on the case of Mahmood and Atif v Minister for Justice and Equality, judgment delivered on 14th October 2016.

In this case, Justice Faherty found that a processing time in excess of 6 months to process a visa application submitted by the spouse of an EU Citizen to be an unlawful breach of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. Justice Faherty ordered that the visa application in question be determined within a six-week period.

We are still working on a large number of cases involving very substantial delays in the processing of visas for family members of EU Citizens under the Directive and Regulations. Many of our clients have waited in excess of one year and have still not received a decision, or even an update on the status of the visa applications for their family members. We submit that such waiting times are a clear and inexcusable breach of the Directive and Regulations 4 and 5 of the 2015 Regulations.

APPLICATIONS FOR EU FAM RESIDENCE CARDS FOR PERMITTED FAMILY MEMBERS OF EU CITIZENS

Applications for EU FAM Residence cards for permitted family members of EU Citizens, be it partners, brothers, sisters or any other family members are submitted to the EU Treaty Rights Division of the INIS under the provisions of Article 10 of Directive 2004/38/EC and Regulation 7 the European Communities (Free Movement of Persons) Regulations 2015.

Our office is of the opinion that there is no distinction in Article 10 or Regulation 7 between the time frame in the issuance of a decision on the application for permitted or qualifying family members. We quote from Article 10:

“The right of residence of family members of a Union citizen who are not nationals of a member state shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately”.

APPLICATIONS FOR NATURALISATION AS AN IRISH CITIZEN

INIS have published a new Application Form 8 which should be used for all new adult applications for naturalisation based on five years reckonable residency or three years reckonable residency based on the spouse or civil partner of an Irish citizen.

The updated Form 8 can be downloaded on the INIS website, by following the link below:

http://www.inis.gov.ie/en/INIS/Form%208%20Ver%205.5%20Aug%2016.pdf/Files/

Form%208%20Ver%205.5%20Aug%2016.pdf

THE DECISION OF MAHMOOD AND ATIF

The judgement in the case of Mahmood and Atif v Minister for Justice and Equality was delivered on 14th October 2016.
Mr Mahmood is a British national, his wife Ms Atif is a citizen of Pakistan. Mr Mahmood and Ms Atif are legally married spouses. In and around June 2015 Mr Mahmood and Ms Atif submitted an application for a visa for Ms Atif to accompany Mr Mahmood to Ireland pursuant to Directive 2004/38/EC and then, the European Communities (Free Movement of Persons) Regulations 2006. Ms Atif submitted her application and supporting documents through the VFS centre as required on 9th July 2015.
Mr Mahmood travelled to be with Ms Atif in Pakistan, on the understanding that her application for a visa would be processed in a number of weeks. The Visa application for Ms Atif included a letter of invitation and a statement of intention to exercise EU Treaty Rights in Ireland. The letter indicated the couple’s plan to initially stay in a hotel whilst searching for accommodation and residence.
When no decision was forthcoming within the expected time frame, the couple emailed the Embassy to query the status of their application. They were informed that their application had been transferred to the Dublin office for processing and all further queries should be directed there. The Dublin Visa office, when contacted, indicated that the couple could expect a decision within the next 20-week period.
In November 2015, the couple’s legal representatives issued Judicial Review mandamus proceedings and leave was granted on 15th November 2015. Leave was also granted to seek damages and declaratory relief that the delay in this instance was in breach of the aforementioned Directive and Regulations.
The Minister argued that Mr Mahmood and Ms Atif are not beneficiaries of the Directive and Regulations, as Mr Mahmood was not residing, nor had travelled to Ireland. The Minister argued that no evidence had been supplied of any link or intention to reside in Ireland, apart from Mr Mahmood’s statement confirming same and argued that the intended move constitutes “artificial conduct” to obtain right under the Directive. The Minister contended that the State is entitled to investigate such matters, including the construction of circumstances to benefit from the Directive and Regulations and to investigate any matters of abuse of rights, including breach of the Common Travel Area, with the United Kingdom. The Minister argued that Mr Mahmood and Ms Atif were therefore not entitled to have their application for a visa for Ms Atif processed on an accelerated basis. The Minister contended that even if Ms Atif and Mr Mahmood were entitled to have their application assessed on an accelerated basis, the Minister has in place a fair and reasonable system in place for the processing of such visas.
The State further argued that to prioritise such visas over all other types of visas was not in the best interests of the State and highlighted that there has been a huge increase in applications for EUTR visas for qualifying family members of EU Citizens, particularly British citizens, in the latter part of 2015 and the State has limited resources and capabilities to deal with same. The respondent outlined that there were around 7,000 pending applications at the time.
Counsel for the applicants outlined that Mr Mahmood and Ms Atif had made it clear in the proceedings that it was their desire to ultimately return to the UK at some stage. Counsel outlined that this was an irrelevant factor in their visa application and highlighted that the visa should be considered under Article 6 of the Directive-the right of residence of the EU citizen and their family member for a period of three months. Counsel reiterated that a move to the UK in the future is ultimately a matter of the UK authorities and was not relevant in this case. Counsel also highlighted that any concerns in relation to the couple’s marriage or documentation is a reason to refuse a visa and not delay a decision on same.
The court determined that the Respondent’s argument that Mr Mahmood and Ms Atif were not covered by the provisions of the Directive, as Mr Mahmood had never travelled to nor was residing in the State is not in line with the wording and intention of the Directive, which explicitly states “join” or “accompany” the EU citizen. The court outlined a number of cases which again confirmed that the Directive clearly envisaged circumstances were the EU citizen would travel to the State accompanied by their visa required Non-EU family member. The Court stated that Articles 5 and 6 would essentially be negated otherwise.
The Court agreed with the applicant’s submissions that the couple’s visa application relates to Article 5 and 6 of the Directive- the right of entry and residence of up to 3 months. The Respondent’s attempt to apply Article 7 criteria- the right of residence for more than 3 months- was found to be flawed. The Court also found that the Minister’s contention that the granting of the visa could lead to a path of “abuse” of rights was unfounded.
The Court quoted from The Secretary of State v Akrich (Case C 109/01 [2004] O Q 765
“…it should be mentioned that the motives which may have prompted the worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State, provided that he there pursues of wishes to pursue and effective and genuine activity.”
The Court noted that it was not at this stage, where an application has been made for a visa to enter Ireland and reside for a period of three months, that the Respondent need to be satisfied that the EU citizen is validly exercising his EU Treaty rights in the State.
The Court dealt with the Respondent’s arguments in relation to the huge surge in applications for EU Treaty rights visas and the concerns in relation to fraud and the use of agencies in the submission of applications for such visas. Whilst the Court found such arguments compelling in nature, no evidence was found that such concerns relate to Mr Mahmood or Ms Atif’s application and found that what had occurred is that the couple’s visa has been caught up in the huge surge of applications.
The Court noted whilst no time frame is specified in the Directive, given the specification of 6 months in Article 7, applicants for such a visa could expect to receive the decision within 6 months and did note that the Respondent’s own guidelines state a 4-week processing time.
Mr Mahmood and Ms Atif were given a time frame to expect a decision within 20 weeks- a time frame which came and went without the issuance of a decision.
The Court ordered that a decision will be issued on Mr Mahmood and Ms Atif’s application within 6 weeks from the date of perfection of the order. The Court held that the applicants were not entitled to damages in these circumstances.

BERKELEY SOLICITORS IMMIGRATION TEAM

THE COMPLICATION OF CHANGING IMMIGRATION STATUS – THE LUXIMON CASE

The judgement of the Court of Appeal in the case of  Danibye Luximon & Another v The Minister of Justice and Equality,heard in June 2016, remains pending. The judgement is eagerly awaited as it is expected to clarify the legalities around the Minister’s policies on change of status applications.

 

The case concerns an application to the Minister for Justice from an undocumented student applying for stamp 4 residence permission.  The application was submitted and considered under Section 4 (7) of the Immigration Act 2004 which states as follows:

 

A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefor by the non-national concerned.

 

For many years, this section was relied on by persons who were undocumented in the State to apply to the Minister for Justice to regularize their status in the State. The applicant in the Luximon case was unsuccessful in this application, and challenged the decision before the High Court. The High Court found the Minister’s refusal was unlawful because the Minister failed to take into account any rights the applicants may have regarding personal and family rights under Article 40.3 and Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights; and secondly, because the Minister failed in her obligation to publish the policies applied to such applications under Section 4 (7).

 

The Minister appealed this High Court decision to the Court of Appeal and we now await the judgement.

 

Meanwhile, the Minister for Justice has published general guidelines confirming that it is only possible to apply for a renewal or variation in immigration permission under Section 4(7) of the Immigration Act 2004 when the applicant has a valid current permission to reside in the State. In other words, the change of status application will not be accepts from undocumented persons.

 

This is a significant departure from the policy of the Department of Justice for many years.  The effect is that any undocumented person will have to utilise the application procedure know as the Humanitarian Leave to Remain,under Section 3 of the Immigration Act 1999 as amended, in order to have their right to reside considered. A unsuccessful Humanitarian Leave to Remain will result in a deportation order.
We will update this blog on review of the Court of Appeal’s decision in Luximon.