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.

BREXIT – BRITISH CITIZENS AND EU FREE MOVEMENT RIGHTS

The UK’s departure from the EU is now a fact, and Theresa May has recently confirmed  the UK will trigger the process to leave the EU under Article 50 of the Lisbon Treaty as early as March 2017. This would mean that it looks likely the UK’s departure from the EU would happen around March 2017.

So many questions remain to be answered as to how Brexit will affect the rights of residence and free movement of UK citizens, and their family members,  within the EU. These rights are currently governed by  EU Directive 38/2004/EC, as implemented in Ireland by The European Communities (Free Movement of Persons) Regulations 2015.  

For those concerned what is to happen when this law no longer applies to UK citizens after March 2019, it may be reassuring to hear that it is currently being reported that consideration is being given within the EU to allow the UK an exemption to the normal freedom of movement rules for up to seven years. It this proposal is effected, it would mean that potentially British citizens and their family members would be given access to the EU market, both in terms of residence and employment and welfare,  on the same terms as they currently are, despite not being EU citizens.

We refer to article in the Guardian dated 24th July 2016:

https://www.theguardian.com/world/2016/jul/24/brexit-deal-free-movement-exemption-seven-years

Senior British and EU sources have confirmed that despite strong initial resistance from French president François Hollande in talks with prime minister Theresa May last week, the idea of an emergency brake on the free movement of people that would go far further than the one David Cameron negotiated before the Brexit referendum is being examined.

If such an agreement were struck, and a strict time limit imposed, diplomats believe it could go a long way towards addressing concerns of the British people over immigration from EU states, while allowing the UK full trade access to the European market.

While the plan will prove highly controversial in many member states, including France, Poland and other central and eastern European nations, the attraction is that it would limit the economic shock to the EU economy from Brexit by keeping the UK in the single market, and lessen the political damage to the European project that would result from complete divorce.

EU TREATY RIGHTS – CURRENT DELAYS IN PROCESSING APPLICATIONS

Currently, applicants for both the EU Family Member registration cards, and EU Fam visas, are being greatly frustrated by the delays in the processing of these applications.These delays are such that the Department of Justice is indicating that the average processing time for the EU Fam residence card application is now ten months.

Many family members of EU nationals are waiting up to 12 months or more for their visa applications to be processed.

These substantial delays in the issuance of EU Fam residence cards and EU Fam visas to family members of EU citizens are in direct breach of the terms of  EU Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015.

For example, the Directive  and Regulation clearly states that the visa applications are to be processed by way of an “accelerated procedure”.

However notwithstanding this, these substantial delays are occurring in relation to applications from both “qualifying family members” such as spouses, children and dependant parents and “permitted family members, including siblings and de facto partners”.

 

Regulation 4 of the Regulations relates to “permission for union citizens and qualifying family members to enter the state”. Regulation 4(3)(b) states:

“The Minister shall grant qualifying family members every facility to obtain an Irish visa, and on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge”.

 

Regulation 5 relates to “permission for permitted family member to enter the State”.Regulation 5(8)(b) states:

“The Minister shall grant permitted family members every facility to obtain an Irish visa, and on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge”.

 

We note that the wording of Regulation 4(3)(b) and 5(8)(b) is exactly the same and provides the same procedure for both qualifying and permitted family members.

Due to these on going delays, a growing number of applicants are issuing Mandamus proceedings before the High Court seeking the High Court to intervene and issue orders against the Minister for Justice to determine the EU Treaty Rights applications.

 

A number of test cases have been heard by the High Court  relating to visa applications from the spouses of EU citizens, some in cases where the EU citizen intends to travel to Ireland, but has not yet arrived here and some in cases where the EU citizen has taken up residence in Ireland and are awaiting their spouses joining them.

 

There has also been test cases chosen relating to the delays on the determination of the EU residence card applications once they go over the required six month determination period.

 

We await these decisions from the High Court, which will hopefully have immediate consequences on the determination of many pending applications.

 

BERKELEY SOLICITORS

 

BREXIT – THE POSITION OF BRITISH CITIZENS IN IRELAND

On 2 October 2016, British Prime Minister Theresa May announced the UK government’s plan to implement the process of the UK leaving the EU under Article 50 of the Lisbon Treaty.  Ms May confirmed she would trigger Article 50 by the end of March 2017 with the intention that the UK will leave the EU by the end of March 2019.

The specific terms for the UK’s withdrawal from the EU have yet to be established.

Ms May has confirmed that new legislation will be drafted to remove the European Communities Act 1972 from the statute book and to transfer existing EU laws into the UK domestic law.

The UK’s impending exit from the European Union has brought about much uncertainty to UK citizens living and working in Ireland  pursuant to EU Directive 38/2004/EC and The European Communities (Free Movement of Persons) Regulations 2015. People are concerned how this result will impact their free movement rights, and that of their family members.

For all British citizens now very concerned regarding their immigration status in Ireland, and that of their family members, they should be aware that the UK remains a full member of the European Union, and the terms of EU Directive 38/2004/EC and The European Communities (Free Movement of Persons) Regulations 2015 continue to apply to UK citizens and their family members.  We expect this situation to continue as long as the UK remain part of the EU, which according to Ms May  looks likely to be March 2019.

In order for the UK to officially exit from the European Union, the country must formally notify the European Council of its intention to leave, activating Article 50 of the Lisbon Treaty. It is then up to the European Council to negotiate and conclude an agreement with the UK, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU. The European Union must reach a qualified majority agreement between the member states and consent of the European Parliament for the UK to formally exit.

We refer to Article 50 of the Lisbon Treaty which states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

 

The UK’s departure from the EU will be a long and complicated process.  However, during this process, UK citizens will continue to enjoy all the rights of the current EU law and can therefore proceed with applications pursuant to EU Directive 38/2004/EC and The European Communities (Free Movement of Persons) Regulations 2015 as per normal.

BERKELEY SOLICITORS