SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

On the 21st December 2020, the Supreme Court delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality.

The applicants, who are clients’ of Berkeley Solicitors, issued proceedings to challenge a refusal of the EU residence card on the basis that the applicant was not a member of the household of the EU citizen. For further details on this case, refer to our previous article below:

https://berkeleysolicitors.ie/court-of-appeal-judgment-on-membership-of-the-same-household-in-eu-treaty-rights-cases/

The Subhan and Ali case has become a test case to establish the meaning of the term members of the household of the Union citizen” for the purposes of the Citizens’ Directive, and has a number of cases following it in the High Court holding list.

Mr Justice Charleton, who delivered the judgement on behalf of the Supreme Court today, stated the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another, requires reference to the CJEU.

The questions to be referred to the CJEU are as follows:

  1. Can the term member of the household of an EU citizen, as used in Article 3 of Directive 2004/38/EC, be defined so as to be of universal application throughout the EU and if so what is that definition?
  2. If that term cannot be defined, by what criteria are judges to look at evidence so that national courts may decide according to a settled list of factors who is or who is not a member of the household of an EU citizen for the purpose of freedom of movement?

The reference to the CJEU is welcomed as this should finally bring clarity to who is entitled to a residence card as a member of the EU citizen’s household.

Further updates on this case will be posted here.

NOTICE ON CHANGE OF ADDRESS FOR BERKELEY SOLICITORS

We are delighted to update you that Berkeley Solicitors will soon be moving from our current location at 71 Amiens Street, Dublin 1, to  our new office at

Unit 3 Christchurch Hall, High Street, Dublin 8, D08 P403.

We will move to our new office on Monday the 14th December 2020.

The new office is more spacious, and will be more suitable for us when our new staff join our team in January. It is also more convenient for our regular visits to the Four Courts.

To facilitate the move, we will be closing our office for one day on Friday the 11th December 2020. We will not therefore be available to respond to emails and calls on the 11th of December, but business will return to normal in our new office on Monday the 14th December. We apologize for any inconvenience this may cause.

SCHEME TO REGULARISE STATUS OF UNDOCUMENTED MIGRANTS IN IRELAND CURRENTLY UNDER CONSIDERATION

On 6th December 2020, the Irish Times reported that a scheme to give undocumented migrants residency rights in the State is currently under consideration by the Minister for Justice.

The government has committed to the introduction of such a scheme within the first 18 months in office.

The new scheme is expected to provide a pathway for approximately 17,000 undocumented migrants to apply for lawful residence in the State.

The Minister for Justice stated that this figure included about 3,000 undocumented children, many of whom were born here and have lived all their lives in Ireland.

A policy document setting out a framework for the regularisation of status is likely to be published in the new year.

At present there are no further details on the scheme, though the Irish Times reported that part of the process will include Garda vetting, and that residency will be available to those who are considered to be no threat to the State.

The article can be read in full here.

Please be aware that the scheme is only under consideration at the moment, and no such scheme exists at present so therefore no new application process is currently available.

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

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

NOTICE ON INIS WEBPAGE RE POSITION OF BRITISH CITIZENS AND THEIR FAMILY MEMBERS AFTER THE END OF THE BREXIT TRANSITIONAL DATE ON 31ST DECEMBER 2020

The INIS have placed a notice on their webpage on 19th November 2020 providing a number of clarifications with regards to the immigration position of British Citizens and their family members following 31st December 2020- the end of the Brexit Transitional period.

The notice confirms that “nothing will change for UK nationals living in Ireland” on the basis of the Common Travel Area.

The notice sates:

The protections provided by the Common Travel Area mean that UK nationals living here (and likewise Irish citizens living in the UK), will continue to travel freely, live, work and access education, healthcare and social services in each other’s country, after the UK leaves the EU.

The notice further confirms that UK citizens will not require any document to evidence their lawful residence in Ireland after 31st December 2020.

The notice also states that separate arrangements are bring put in place for non-EEA family members and or dependents of UK citizens where the UK citizen is exercising EU Treaty Rights in Ireland and the family member holds an EU FAM Residence card. It is confirmed in the notice that such persons will continue to hold the same right of residence in Ireland and will not lose any of the rights of residence they currently hold under the EU Free Movement Directive.

The notice states there will be a system of exchanging your EU Fam residence card to a different residence card indicating that your residence is derived from the Withdrawal Agreement. The INIS will operate this system and it is indicated that it will operate under the new online renewal system. As part of this exchange of residence card system, applicants will be required to confirm that the British citizen has been exercising their EU Treaty Rights in the State prior to 31st December 2020 and are continuing to so. You will be asked to return your five-year EU Fam residence card and a new residence card will be issued to you.

There will be a period of one year from 31st December 2020 to 31st December 2021 in which you will be required to submit this application for an exchange in your residence card.

It is great to now receive clarity that the INIS will continue to process applications for EU Fam residence cards that are received prior to 31st December 2020 for Non-EEA family members of British citizens, provided the British citizen has exercised his or her EU Treaty Rights in the State prior to 31st December 2020.

The notice states:  These applications will continue to be processed even if a decision is not made until after 31 December 2020.

Therefore, it appears that such applications, if successful should be issued with a residence card issued under the Withdrawal Agreement once their application is decided, rather than the EU FAM Residence card.

The notice also repeats an earlier notice of the INIS that a new scheme will be introduced for UK nationals who come to Ireland after the 31st December 2020 and wish to bring their non-EEA Family members with them, with details of that scheme to follow.

It therefore appears that British citizens who have exercised their right of free movement to Ireland prior to 31st December 2020 will still be in a position to apply for their Non-EEA family members under provisions equivalent to a current EU Fam residence card application.

This notice will also bring clarity and comfort to persons who in Ireland who current hold EU Fam residence cards or have EU fam residence cards currently pending.

Another blog on the new scheme post 31st December 2020 will be posted once same has been published.

The full notice can be found here:

http://www.inis.gov.ie/en/INIS/Pages//UK-withdrawal-from-the-EU-Information-for-UK-Nationals-and-their-Non-EEA-family-members-living-in-Ireland

We Are Hiring!

Berkeley solicitors is now recruiting for two positions.

An Immigration Solicitor and a Reception/Admin Support role.

Click Links for details.

 

Immigration Solicitor:

https://www.lawsociety.ie/legalvacancies/viewjobs/solicitor23/?filters=&location=&category=&area=#.X60rOWj7SUk

 

Reception/Admin Support:

https://www.lawsociety.ie/legalvacancies/viewjobs/receptionistadmin-support/?filters=&location=&category=&area=#.X60qxWj7SUk

 

Closing Date for Applications: 23 November 2020 at 5pm.

ESTABLISHMENT OF A SINGLE PERSON COMMITTEE OF INQUIRY INTO REFUSALS OF IRISH CITIZENSHIP WHERE NATIONAL SECURITY CONCERNS ARISE HAS BEEN ANNOUNCED

On 30th September 2020, the Minister for Justice and Equality announced the establishment of the awaited Single Person Committee of Inquiry into refusals of naturalisation applications where the refusal is in whole or in part based on national security concerns.

A new enhanced procedure was set up in compliance with the findings of the Supreme Court decision of A. P -v- Minister for Justice and Equality [2019] IESC 47, delivered on the 31st May 2019.

Our blog relating to this judgement can be found here.

Mr. Justice John Hedigan has been appointed as member of this single person committee. Mr. Justice John Hedigan was a Judge of The Court of Appeal in Ireland until his retirement. Prior to that, he was a Judge of The High Court from 2007 until 2016 and from 1998 until 2007 he was a Judge of The European Court of Human Rights.

This is a new procedure and it is yet to be seen how it will operate in practice. It appears that the system will operate on the basis that an applicant who has been refused naturalisation on basis of nationality security concerns can apply to the SPC. The SPC will then undertake an assessment and make a report to the Minister. The report will recommend to the Minister that the information used to form the basis of the refusal decision be provided in whole to the applicant, in part (“the gist” of the information) or that the information not be released to the applicant. The Minister will make her decision based on the report from the SPC.

Minister McEntee has stated in respect of Judge Hedigan’s appointment and to the establishment of this Committee:

“I am pleased that retired Judge John Hedigan has agreed to serve as the Member of the Single Person Committee. The establishment of the Committee will provide greater openness and transparency in the process for applicants who are refused a certificate of naturalisation in the small number of cases where National Security concerns arise.

“It also ensures that the confidentiality of matters of National Security continue to be appropriately maintained for the security of the State.”

The full announcement can be found here.

MINISTER FOR JUSTICE ANSWERS PARLIAMENTARY QUESTIONS RELATING TO EU TREATY RIGHTS REVIEW APPLICATIONS

On Tuesday 22nd September 2020, Holly Cairns TD put a number of parliamentary questions to the Minister for Justice relating to EU Treaty Rights review applications.

Deputy Cairns asked the Minister to provide details of the immigration status given to individuals that are waiting for a decision on EUTR review applications, and further asked if persons that are waiting for an EUTR review decision are permitted to work or to claim Covid-19 pandemic emergency payments.

In response to these questions the Minister stated as follows:

“A person who applies for a Residence Card on the basis of being a Qualified Family Member (QFM) of an EU National will generally be granted a Temporary Stamp 4 (TS4) of 6-9 months duration, on application, pending the processing of their application. A TS4 enables a person to live and work in the State.

If their application is refused, and they apply for a Review of this decision, another Temporary Stamp 4 will generally be issued to them, pending the Review application being processed, and a final review decision issuing. A successful QFM applicant at either application stage or Review stage will be issued a Residence card of 5 years duration (Stamp 4 EUFam).

Permitted Family Member (PFM) applicants, unlike Qualified Family Member applicants, are not issued with a temporary stamp on application or review. If a PFM applicant is deemed to be a PFM of an EU Citizen exercising their Treaty Rights, under the terms of the Directive, either when their application is processed, or when their review decision is processed, they will be issued a Residence Card of 5 years duration. (Stamp4 EUFam).

Anyone who has lost their job as a result of the COVID-19 pandemic can apply to the Department of Employment Affairs and Social Protection for the Pandemic Unemployment Payment.”

Deputy Cairns also asked the Minister to provide details of the pending EUTR review applications according to nationality in tabular form.

The Minister confirmed that there are currently 2,142 review applications being processed in respect of 91 different nationalities. A table detailing the number of applications and the nationalities of the applicants was also published and can be accessed here.

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

If you or a family member have any queries about an EU Treaty Rights application, please do not hesitate to contact our office.

DEPARTMENT OF JUSTICE ANNOUNCES FURTHER RESUMPTION OF VISA SERVICES

On 25th September 2020, the Department of Justice published an announcement on its website confirming that it has recommenced issuing decisions for certain visa categories.

Due to Covid-19, the Department had been issuing decisions in respect of the Emergency/Priority categories of visas only.

The announcement states as follows:

“We can now confirm that we have also recommenced issuing decisions on certain long-stay visas which include categories such as Third level study at primary degree and postgraduate level, Employment and Join Family.

You should note that while we continue to accept applications for English Languages studies, decisions on applications from new students will remain on hold pending further consideration by the relevant authorities.”

It remains the position that we are not accepting any short stay visa applications, except for cases that fall under the Emergency/Priority criteria.”

The Department further announced that it has expanded the list of exemptions which fall under Emergency/Priority to include those specific categories of travellers, identified as having an essential function or need in the EU Council Recommendation (EU) 2020/912 of 30 June 2020.

The full notice can be read here.

DEPARTMENT OF JUSTICE PUBLISHES NOTICE FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS WHO ARE RESIDING IN IRELAND

On 17th September 2020, the Department of Justice published an updated notice regarding the status of non-EEA family members of British citizens who are residing in Ireland.

The Brexit transition period is due to end on 31st December 2020.

The notice states as follows:

From the end of the transition period, non-EEA family members of British citizens that are newly resident in Ireland will not come within the scope of the EU Free Movement Directive. A separate preclearance scheme will apply to such persons seeking to reside in the State, and they should be in possession of a valid travel document and, if required, an Irish entry visa or transit visa for the State.”

We at Berkeley Solicitors welcome this update but the lack of clarity is concerning. The notice does not provide any information as to what will happen to applicants who have pending EUFam residence card applications that remain undetermined by 31st December 2020.

Our clients still do not have confirmation of what immigration rules and financial thresholds will be applied to residence/ pre clearance applications from the family members of British citizens after the 31st December 2020.

While the notice states that a separate preclearance scheme will apply to such persons seeking to reside in the State after the end of the transition period, details of the new preclearance scheme have not yet been announced.

We are also aware that a large number of residence applications for non-EEA family members of British citizens are taking considerably longer than six months to be determined. This is of great concern as the Minister is breaching the obligation to determine these applications within a six-month timeframe, thereby putting British citizens and their family members at risk that they may be refused after the 31st December 2020.

The full notice can be read here.

If you or your family are impacted by these issues please do not hesitate to contact the office.

DEPARTMENT OF JUSTICE AND EQUALITY ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS

The Minister for Justice and Equality has today announced a further temporary extension of immigration and international protection permissions until the 20th January 2021.

This is the fifth automatic extension of immigration permissions announced and applies to permissions due to expire between 20th September and 20th January 2021, along with those whose permission was previously extended under the four previous notices since the 20th March 2020.

Minister McEntee has said that:

I am providing certainty to anyone who already holds a valid permission that your legal status in this country is maintained until 20 January 2021.

This gives you the necessary time to make arrangements with the Immigration Service in Dublin or An Garda Síochána outside Dublin to ensure that your registration is renewed in the normal way by that date. You can do so without the additional worry of falling out of permission in the meantime through no fault of your own. I encourage you to do so at the earliest opportunity.”

The notice also clarifies that this is expected to be the final extension of permissions announced.

This is a welcomed announcement which will remove much of the unnecessary worry for those whose residence permissions are expiring during the current Covid 19 crisis.

The full announcement can be read in full here