MINISTER FOR JUSTICE ANNOUNCES CHANGES TO REQUIREMENTS FOR CHILDREN APPLYING FOR IRISH CITIZENSHIP

On 23rd March 2021, the Minister for Justice, Helen McEntee, announced that she will make it easier for children born here, whose parents are not Irish citizens and who are not entitled to citizenship at birth, to gain Irish citizenship themselves.

The current policy is that a child born in the State, but who is not entitled to citizenship by birth, needs to be resident in Ireland for five of the previous eight years before they can apply for citizenship.

Minister McEntee announced that she intends to reduce the residency requirements for such children from five years to three years.

These changes will be contained in the upcoming Civil Law (Miscellaneous Provisions) Bill 2021, which is expected to be submitted to Government in the coming weeks.

Once this legislation comes into force, the number of years a minor must be resident in Ireland will now be two years out of the previous eight, in addition to the requirement to have one year’s continuous residence immediately prior to their citizenship application.

Announcing this step, the Minister for Justice commented:

“The granting of Irish citizenship is a privilege and an honour which is recognised by the thousands of people who apply every year. It is my hope that reducing the amount of time children of non-Irish nationals born in Ireland have to wait before being eligible for citizenship will provide comfort and reassurance to many families across the country.

 This amendment provides increased security for children where a parent subsequently falls out of permission as the child will be entitled to Irish citizenship and will therefore be an EU citizen with the right to remain in the State with a non-EEA national guardian or parent.

However, it will not broaden the categories of children who are entitled to citizenship and this amendment will only apply to the children of those parents who are legally resident in the State. Children born here to non-national parents who have three years prior residency will continue to be Irish citizens from birth.”

This is a welcome development which will allow children who are currently on a pathway to citizenship to attain this status at a much earlier stage.

The full announcement can be read here.

If you or a family member have any queries about applying for Irish citizenship, please contact our office.

NEW VISA AND PRECLEARANCE APPLICATION SUSPENSIONS EXTENDED

On 29th January 2021, a notice was posted on the Department of Justice website confirming that new measures had been imposed from the 29th January 2021, including the cessation of accepting new visa or preclearance applications from all countries.

On 4th March the Department of Justice website update the notice and has confirmed that these measures have now been extended to at least the 5th April 2021. It is understood that the situation will continue to be reviewed. We understand this is very upsetting news for many of our clients.

The Department are continuing to process applications submitted before the 29th January 2021.

However, the notice further states that:

“For applications which were received prior to January 29th, these will continue to be processed. However, for successful applications, unless your application meets the Emergency/Priority criteria set out above, a visa or preclearance approval letter will not issue until such time as these restrictions have been lifted. You will be notified if your application is successful. Refusal letters for unsuccessful applications on hand will continue to be issued.

We continue to accept and process appeals. However, for successful appeals, unless your appeal meets the Emergency/Priority criteria set out above, a visa or preclearance approval letter will not issue until such time as these restrictions have been lifted (we will notify you that your appeal was successful). Refusal letters for unsuccessful appeals will continue to be issued.”

Therefore, should your visa or preclearance application be approved during this period, the visa or preclearance approval letter will not be issued until restrictions have been lifted.

Priority or Emergency cases will continue to be processed online during this extension in the normal manner and the categories of applications considered to be priority or emergency has remained the same.

The full list of applications currently falling in the above category can be found here.

The notice is available to read in full here.

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

UPDATE ON PROMISED SCHEME TO REGULARISE STATUS OF UNDOCUMENTED MIGRANTS

The Minister for Justice Helen McEntee is due to publish her Justice Plan 2021 today, the 22nd February 2021.

The plan contains more than 200 actions which are to be implemented in the next 12 months, including the promised regularisation scheme for undocumented persons.

According to an article in The Journal, the scheme is expected to launch in the autumn and applications will be accepted by the end of the year.

The Minister for Justice was quoted as saying:

“We are all familiar with the plight of the undocumented Irish who have built their lives in the United States but have not regularised their status, even though they are an integral part of their communities. 

We must acknowledge there are thousands of people here in Ireland in a similar position: who have started families here, work here and contribute so much to our society but who want to regularise their position with Irish authorities.

The scheme will be open to applicants by the end of the year and could benefit an estimated 17,000 people, including 3,000 young people or children.”

Berkeley Solicitors welcomes the news that the Department of Justice is prioritising this important issue and we look forward to the scheme being published.

As soon as the intended scheme is published, we will post a further update on this blog.

The full article can be read here.

If you or a family member have any queries about your immigration status, please do not hesitate to contact our office.

OBSTACLES FACING STAMP 1G HOLDERS IN RENEWING IMMIGRATION PERMISSION

The Dublin Inquirer published an article on 3rd February 2021 which set out the obstacles faced by the holders of Stamp 1G immigration permission.

A Stamp 1G is often given to graduates who are non-EEA nationals and who have completed their studies in Ireland. Those with a Bachelor’s Degree generally receive a 12-month permission, while those with a Master’s Degrees may receive a 24-month permission.

Prior to the expiry of their permission, Stamp 1G holders must find a job that requires an employment permit if they want to stay in Ireland on a long-term basis.

While it is possible to apply to the Department of Justice to renew your Stamp 1G, there is limited guidance as to what evidence is needed in order to be successful. In general, a person must either show that they found a job or took “appropriate steps” to find one prior to the expiry of their permission.

This requirement causes significant difficulties for Stamp 1G holders, who face the extremely difficult task of finding an employer who is willing to sponsor an employment permit for them, and to take on all of the additional administrative work this entails.

The Dublin Inquirer interviewed a number of Stamp 1G holders, who stated that in their experience, the majority of employers are not willing to hire them due to their immigration status, resulting in their applications being throw out or job offers being withdrawn.

This causes many Stamp 1G holders to accept lower-wage jobs in order to stay in Ireland, rather than holding out for better work that is related to their field of study.

Another individual interviewed by the Dublin Inquirer discussed the worry and uncertainty he experiences, explaining how he spends the majority of his time applying for jobs and keeping a record of his applications and rejections to present to the Department of Justice.

Many Stamp 1G holders have invested years of their time and money studying in Ireland with the intention of residing and building their careers here. However, upon graduation they are faced with significant obstacles in doing so.

A spokesperson for the Department of Justice was quoted in the article as saying there are no current plans to amend the renewal process for Stamp 1G holders.

The full article can be read here.

https://dublininquirer.com/2021/02/03/graduates-from-elsewhere-face-an-extra-anxious-job-search

If you require legal advices regarding your stamp 1G permission, please do not hesitate to contact our office.

MINISTERS ANSWER PARLIAMENTARY QUESTIONS RELATING TO THE REGULARISATION OF UNDOCUMENTED MIGRANTS AND ACCESS TO COVID-19 VACCINES

The Minister for Health and the Minister for Justice have answered parliamentary questions relating to the regularisation scheme for undocumented migrants, and access for Covid-19 vaccines for the undocumented, respectively.

On Thursday 14th January 2021, Neale Richmond TD asked the Minister for Justice for an update on the promised scheme for undocumented persons to regularise their status in the State, and if undocumented residents in Ireland will receive assurances they will not be deported if they present to their local immigration office to regulate their status as suggested by her Department.

In response to this, Minister Helen McEntee stated as follows:

“I propose to take Questions Nos. 165 and 166 together.

The Programme for Government contains a commitment to bring forward a regularisation scheme within 18 months of the formation of the Government, to create new pathways for long-term undocumented people and their dependents, meeting specified criteria and bearing in mind Ireland’s European Union (EU) and Common Travel Area (CTA) commitments.

Currently there is no scheme for the undocumented in place but work is underway in my Department to give effect to this commitment.  This work is being informed by an assessment of international best practice and having regard to our EU and CTA commitments.  I intend to consult with relevant Government Departments, civil society and other interested parties, before finalising the Scheme, which I expect to be in a position to launch in the second half of this year.

In the meantime, I would encourage any person who is resident in the State without permission to contact my Department or their local immigration office and to take all appropriate steps to regularise their own and their family’s status.  In all cases, people must engage with the authorities if they wish to be permitted to remain here legally.

For those who are in the State illegally, a full consideration of all aspects of their case will be carried out before a decision is made to grant permission to remain in the State or to make a Deportation Order. This will include a consideration of their private and family life rights, in accordance with the European Convention on Human Rights.

The Immigration Service of my Department examines each case of undocumented or illegal persons in the State on a case by case basis and a pragmatic approach is taken in relation to each case which is considered on its individual merits.”

On Wednesday 20th January 2021, Holly Cairns TD put a parliamentary question to the Minister for Health relating to access to Covid-19 vaccines for undocumented migrants.

Deputy Holly Cairns asked the Minister for Health to clarify if undocumented persons living in Ireland will be able to access the Covid-19 vaccine, and to confirm that they will not be reported to the immigration authorities when accessing this service.

In response to these questions the Minister Stephen Donnelly stated as follows:

“The Irish COVID-19 Vaccination Programme is designed to ensure the safe, effective, and efficient administration of a COVID-19 vaccine to all residents of Ireland who are indicated within the Vaccine Allocation strategy and wish to receive it.

The HSE has identified undocumented migrants as a higher risk group for COVID-19. There is a community assessment hub located in Dublin city centre specifically for such groups. The HSE has provided additional health supports for undocumented migrants (e.g., GP service in Capuchin Centre). A similar targeted approach will apply in terms of the COVID-19 vaccination programme.

The HSE does not report undocumented migrants to immigration authorities.

It is important that undocumented migrants are encouraged and facilitated to take-up the Covid-19 vaccine.”

We at Berkeley Solicitors welcome the news that the promised scheme for undocumented migrants will be launched later this year, as well as the assurances that undocumented migrants will be able to access Covid-19 vaccines when they become available.

The questions put to the Ministers and the answers given can be read in full here and here.

If you or a family member have any queries about your immigration status, please do not hesitate to contact our office.

REVOCATION OF IRISH CITIZENSHIP – IRISH SUPREME COURT DECLARES SECTIONS OF THE IRISH NATIONALITY AND CITIZENSHIP ACT ARE UNCONSTITUTIONAL FOLLOWING JUDGEMENT IN DAMACHE V MINISTER FOR JUSTICE

On 14th October 2020, the Supreme Court found that the system in place for the revocation of Irish citizenship by way of naturalisation, as set out in section 19 of the Irish Nationality and Citizenship Act 1956, was unconstitutional.

Under the provisions of Section 19 the Minister for Justice is required to notify a person that she intends to revoke their certificate of naturalisation. The affected person can then apply for an inquiry as to the reasons for revocation, and this application is referred to an independent committee of inquiry appointed by the Minister.

The Supreme Court held that this process does not meet the high standards of natural justice applicable to a person facing the severe consequence of losing their Irish citizenship. Central to this decision was the fact that the Minister for Justice is not bound by the findings of the independent committee, and that there is no right of appeal from the Minister’s decision.

Ultimately, the revocation process under Section 19 resulted in a situation where the same person who initiated the revocation process (the Minister), and whose representatives make the case for revocation before the committee, also makes the final decision to revoke.

The Supreme Court therefore found that Section 19 of the 1956 Act was unconstitutional. However, it deferred making its final orders until it had heard further submissions from the parties and the Irish Human Rights and Equality Commission, who acted as amicus curiae in the proceedings, as to whether any aspects of Section 19 should be upheld, or whether Section 19 should be struck down in its entirety.

The Supreme Court heard these additional submissions on 21st January 2021.

On Wednesday 10th February 2021, the Court granted declarations that Sections 19(2) and 19(3) be struck down in their entirety but found that it was not necessary to strike down section 19(1), which contains the ministerial power to revoke and the grounds for such revocation.

As a result of these declarations, new statutory provisions for the revocation of certificates of naturalisation will have to be implemented. Until this occurs, the Minister for Justice cannot exercise her statutory power to revoke a certificate of naturalisation.

As reported by the Irish Times, Ms Justice Dunne said it is “inconceivable” that the Minister for Justice could revoke a grant of citizenship until a new process is in place with safeguards to meet natural justice requirements.

The full judgement of the Supreme Court can be read here (https://www.courts.ie/acc/alfresco/9f6e2c6d-eb77-4c9f-ad57-fffe7ffc65f6/2020_IESC_63.pdf/pdf) and the Irish Times article can be read here (https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-ruling-to-require-new-rules-for-revoking-citizenship-1.4481073)

Berkeley Solicitors will post further updates on the ever-evolving law surrounding revocation of Irish citizenship as it become available.

If you or a family member have queries about the naturalisation process, please contact our office.

HIGH COURT JUDGEMENT REGARDING EUTR DEPENDENT PARENT CASE; DAR AND THE MINISTER FOR JUSTICE AND EQUALITY

Judgement was delivered by Mr Justice Max Barrett in the matter of Shakeel Ahmed Dar and the Minister for Justice and Equality, on the 19th January 2021. The facts of the case are set out below.

Mr Dar is a UK national, who has been living and working in Ireland since 2004. Mr Dar resides with his wife, and operates a business in the State. In 2016, Mrs Kauser, Mr Dar’s mother, travelled to Ireland on foot of a visa, intending to visit her son and  family, and return to Pakistan. After arriving in Ireland, Mr Dar deemed it was in his mother’s best interests to remain with him in the State. An application for an EU Residence card on the basis of dependency was submitted to the Minister for Justice (“the Minister”) in line with the EC (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), under cover letter dated 25th August 2016.

A temporary permission to reside on the basis of Stamp 4 was issued to Mrs Kauser, for a period of 6 months, pending the determination of the residency application, as is now standard practice from the Department for Justice (“the Dept.”). Through various back and forth correspondence between the two parties, further documents were requested by the Dept. and submitted in turn by the Applicants. Further temporary permissions were issued to the applicant during the processing of the application.

By letter dated 12th June 2017, the EU residence application was rejected on the grounds that the necessary evidence of dependence had not been submitted. An application appealing the decision was submitted on 23rd June 2017.

The Appeal was refused in December 2018. Judicial Review proceedings were issued in March 2019. The matter was settled, the decision of December 2018 was withdrawn, allowing for reconsideration of the application. Further submissions and proofs were made to the Minister in support of the application. The application was again refused by the Minister in August 2019. The applicant again sought to review the decision of the Minister.

The issue put to the Court for consideration being did the respondent err in law and/or act in breach of European Union law in applying the incorrect test for establishing Mrs Kauser’s dependency on her EU Citizen son. The Court referred to the approach on dependency taken in cases Kuhn v Minister for Justice [2013}; Subhan and Ali v. Minister for Justice and Equality [2019] IECA 330; Ali Agha v. Minister for Justice and Equality [2019] IEHC 883, among others, and the recent Court of Appeal Judgment in Shishu and Miah v. MJE [2021] IECA 1, in its consideration of the issue presented. Considerable weight was given to the test for dependency of K v. MJE [2019] IECA 232 which stated “an applicant must show, in the light of his financial and social conditions, a real and not temporary dependence on a Union citizen”.

Mr Justice Barrett stated “Where the court considers that, with respect, the Minister erred was not so much in what she positively did but in what she did not positively do, i.e. the Minister (i) failed to have any, or any proper, regard to, and (ii) failed to reach a reasoned decision in respect of, the emotional and social dependence which exists between the applicant and his mother, a non-EU/EEA woman in her seventies who resides, and has now for some years resided in her son’s home”.

Mr Justice Barrett noted, in his Judgment, that there is nothing objectionable about the conclusion reached by the Minister as to the want of financial documentation. Mr Justice Barrett stated that “It does not matter whether or not the court agrees with the Minister in this regard: she was entitled to and did reach that conclusion properly by reference to the documentation that was before her.”

 Mr Justice Barrett further noted that “The court respectfully does not accept the proposition that because a mother is living with her adult son it follows, ipso facto, that she is dependent upon that son.”

The court granted the order of certiorari sought, quashing the decision of the Minister for Justice, and remitting the matter to the Minister for fresh consideration.

Of particular note in this Judgement is the Court’s remarks on the fact that the decision to reject the application at first instance, was essentially for want of further documentation in support of the applicants claim for dependency. The Court noted that when the matter was settled and further submissions in support of the applicants’ claim of dependency, were submitted,  that the applicant “did not go to the ‘nth degree”.  This highlights the importance of keeping the Minister apprised of any updates in an applicant’s circumstances, and continuing to submit documentation, while an application is pending.

If you are submitting an application for a dependent family member under EU Treaty Rights law, Berkeley Solicitors has a lot of experience in these applications and we would be happy to advise.

APPLICATIONS OPEN FOR WITHDRAWAL AGREEMENT BENIFICIARY CARDS FOR UK NATIONALS AND THEIR FAMILY MEMBERS

Brexit has not affected a UK national’s right to reside or work in Ireland as UK nationals continue to reside lawfully in the State under Common Travel Area protections.

The Withdrawal Agreement also ensures that UK nationals, and their non-EEA Family members, who are resident in Ireland pursuant to the Free Movement Regulations under EU law, as of the 31st December 2020, will continue to hold the same right to reside and work deriving from the Regulations going forward.

The non- EEA family members of UK nationals resident in the State on or before the 31st December 2020 were previously required to hold an Irish Residency Permit (IRP) card (usually referred to as the “EU Fam Residence card”). Since the 1st January 2021, these family members residing in the State are now required to replace their existing IRP card with a Withdrawal Agreement Beneficiary (WAB) Card, in order to continue to reside lawfully in the State.

The WAB card is an important document that will evidence that the holder of the card is a beneficiary of the Withdrawal Agreement, which allows the UK national or their family member to continue to access all the rights deriving from the EU Free Movement Regulations, eg the right to reside, the right to work, the right to permanent residence, etc.

The family members of UK nationals who are resident in the State on or before the 31st December 2020 are required to apply for the WAB card.

It is very important that the family members of UK nationals apply for the WAB card as soon as possible, because after the 31st December 2021 their IRP card issued under the Regulations (the EU Fam residence card) will become invalid.

Applications for a WAB card are open since the 1st January 2021, and are being administered by the Immigration Service of the Department of Justice through and on-line renewal system available at https://inisonline.jahs.ie. This system applies to all applicants throughout Ireland.

All those affected will have until 31 December 2021 to apply for their WAB card.

When submitting an application, applicants will be asked to do the following:

  • To confirm that you have been exercising EU Treaty Rights to reside in the State on or before 31 December 2020 and continue to do so.
  • To upload proof of identity and proof of current residence. (passport bio-data page and utility bills)

The INIS website confirms there is no charge applicable for the replacement of the card. Once registration is complete the card will be sent the applicant by Express Post, within 5-10 days

Note that with Brexit coming into effect, the IRP expiry date of all existing non-EEA family members of a UK national reverts to the 31/12/2020 (instead of the expiry date on the current IRP card). This is the date to be included at Section 1.2 of the Online Application Form.

From 1st January 2021, the IRP card (the EUFam Residence card) of all non-EEA family members of a UK national will no longer have a visa exemption effect which permitted them to travel within the EU. If any non- EEA family member of a UK national intends on travelling to another EU Member State after that date, they will need to check the visa requirements for that Member State before travelling.

It is matter of choice for UK nationals who were resident in the State on the 31st December 2020 if they wish to apply for the WAB card. The benefit of applying for the WAB card is that it establishes their rights and entitlements deriving from the Withdrawal Agreement, as opposed to the British citizens who arrive in the State after the 31st December 2020. UK nationals can apply for the WAB card by making an appointment at their local immigration office via the below link. We would highlight that the immigration offices are currently closed due to Covid 19 precautions, so it appears not to be possible for UK citizens to apply for the WAB card immediately.

http://www.inis.gov.ie/en/INIS/Pages/first-time-registration

If any UK nationals or their family members require further information on this matter, Berkeley Solicitors would be happy to advise.

NEW VISA AND PRECLEARANCE APPLICATIONS SUSPENDED

On 29th January 2021, a notice was posted on the Department of Justice website noting that the Minister for Justice had imposed several new measures with regard to travel to the State. The Notice stated that it is currently against the law for any person to travel within Ireland for non-essential purposes outside their 5km radius, and that:

“The strong advice therefore is that everyone, regardless of their nationality or visa/preclearance status, or where they started from, who cannot provide proof of an essential purpose to travel to or within Ireland, should not travel to Ireland.”

The notice states that from the 29th January 2021 the Department is temporarily ceasing the acceptance of new visa/preclearance applications. This notice states that any applications made online will remain valid but a decision will not be made on these applications until such time as restrictions have been lifted.

 “Increasing travel restrictions and the measures introduced as part of the Government’s efforts to interrupt the transmission of COVID-19 means that travel may not be possible and even if possible is not advisable unless absolutely essential.”

Priority or Emergency cases will continue to be processed online in the normal manner with specific instructions for submission detailed on the summary page, at the end of the application.

The full list of applications  currently falling within this category are as follows:

  • Workers or self-employed persons exercising critical occupations including healthcare workers, frontier and posted workers as well as seasonal workers as referred to in the Guidelines concerning the exercise of the free movement of workers during the COVID-19 outbreak;
  • transport workers or transport service providers, including drivers of freight vehicles carrying goods for use in the territory as well as those merely transiting;
  • patients travelling for imperative medical reasons;
  • pupils, students and trainees who travel abroad on a daily basis and Third-country nationals travelling for the purpose of 3rd level study;
  • persons travelling for imperative family or business reasons;
  • diplomats, staff of international organisations and people invited by international organisations whose physical presence is required for the well-functioning of these organisations, military personnel and police officers, and humanitarian aid workers and civil protection personnel in the exercise of their functions;
  • passengers in transit;
  • seafarers;
  • journalists, when performing their duties.

The list of priority/ emergency visa has been amended from the previous visa suspensions during last year.

Of particular note is the fact that applications for visas/ pre clearance submitted pursuant to Directive 2004/38/EC and the European Communities ( Free Movement of Persons) Regulation 2015 are not currently listed as priority and based on this published note alone  would appear to be suspended.

In addition to the above, the Minister signed an order imposing new visa requirements on passport holders from a number of South American countries and South Africa. The order came into effect at midnight on the 27th January 2021. In addition to the existing visa required countries, nationals of the following countries are now visa required nationals:

  • Argentina
  • Bolivia
  • Brazil
  • Chile
  • Colombia (transit visa now required – this country is already subject to entry visa requirements)
  • Ecuador (transit visa now required – this country is already subject to entry visa requirements)
  • Guyana
  • Paraguay
  • Peru (transit visa now required – this country is already subject to entry visa requirements)
  • South Africa
  • Suriname (transit visa now required – this country is already subject to entry visa requirements)
  • Uruguay

 

SOUTH AFRICAN NATIONALS NOW REQUIRE A VISA TO ENTER IRELAND

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.