SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

IMMIGRATION SERVICE DELIVERY ANNOUNCES POLICY CHANGE ON EXTENSION OF ENTRY VISAS DUE TO COVID-19

The Immigration Service Delivery has issued an updated set of frequently asked questions in relation to Covid-19 and its effects on immigration services in the State.

The document now states that individuals who were recently issued  D category entry visas (prior to 15th March 2020) and who were unable to travel to Ireland during the validity dates of their visa as a result of Covid-19 restrictions, may now apply to amend dates on the approved visa.

The previous position of the Immigration Service Delivery was that such individuals would have to submit new visa applications in the event that they could not travel to Ireland within the validity dates of their visa.

The relevant section states as follows:

“Q 5. What facility will be put in place if I am currently outside Ireland and was recently granted a C or D entry visa for Ireland but I am now unable to come to Ireland during the validity period of my entry visa due to travel restrictions? Can my entry visa be extended or will I have to submit a new visa application?

A. In the case of Long Stay visas issued prior to 15th March 2020 where an applicant was not in a position to travel to Ireland because of the COVID-19 situation, it may be possible to amend the dates on the approved visa. Once we resume accepting visa applications, you should contact the Irish Embassy or Consulate that issued the visa to you.

In the case of Employment/Volunteer/Minister of Religion/Study visas, you should be able to show the Embassy that the reason for your travel to Ireland still applies, before consideration could be given to amending the visa that was issued to you.

Anyone who was issued a Short Stay visa during the same period but was similarly unable to travel to Ireland because of the COVID-19 situation will need to make a new visa application when normal visa processing resumes. However, depending on the period of time that has passed and the circumstances of the particular case, if you decide to re-apply we will consider waiving the fee for the new application.”

Given the long processing times for new visa applications, we at Berkeley Solicitors welcome this development.

The full document can be read here.

If you have any queries about applying for an Irish visa, please do not hesitate to contact our office.

SUPREME COURT CLARIFIES “DURABLE PARTNER” FOR PURPOSES OF EU TREATY RIGHTS APPLICATIONS

The Supreme Court delivered a significant judgement on the 2nd June 2020 in the case of Pervaiz v Minister for Justice [2020] IESC 27. The Supreme Court reviewed the decision of the High Court, with respect to an application for a EU Fam residence card by the non EU citizen partner of a Spanish citizen pursuant to the EU Free Movement of Persons (Regulations) 2015. The Supreme Court overturned the High Court ruling that the 2015 Regulations do not correctly transpose the Citizens Directive by reason of the absence of specific and detailed criteria with regards to the definition of “durable partner”. The Supreme Court also disagreed with the finding of the High Court, which took issue with the fact that the relevant parts of the Regulation simply repeat the words of the Directive itself. The Supreme Court also disagreed that the Minister had applied an unlawful requirement, requiring a period of two years cohabitation in order to meet the definition of a partner for the purposes of the regulations.

A preliminary issue in the proceedings was whether there was an issue that the proceedings were taken in the name of the Non-EU citizen applicant only, without his EU citizen partner being a party to the proceedings. The Supreme Court followed the findings of a number of rulings in the High Court that the applicant had the required standing to issue the proceedings in his own name. The Court also noted that the EU citizen in this case had supported the proceedings on affidavit.

The judgement provides a legal analysis of the differing rights of persons who can apply under the Regulations as “qualifying family members”, such as spouses and direct ascendants and descendants as opposed to “permitted family members” such as partners. The Court highlighted the varying rights of such applicants, with “permitted family members” only having a right to have their application “facilitated” and a “detailed examination of their personal circumstances” undertaken.

The Court held that the definition of “partner” in the 2015 Regulations denotes a person with whom the Union citizen has a connection which is personal in nature, and which is akin to, or broadly akin to, marriage.

With relation to the duration of the relationship and its relevance the Court found:

Thus, a durable partnership will tend to be one of some duration, but that is not to say that the duration of the relationship is, in itself, a defining feature. The length of a relationship will be an important, and sometimes compelling, index of the degree of commitment between the couple, but it is perfectly possible for a committed long-term, what is often called a “serious” relationship, to exist between persons who have known one and other for a short time.

With regards to whether cohabitation is required the Court found:

It would seem to me that cohabitation is in most cases a useful yardstick by which the durability of a relationship is assessed and by which it is possible to test whether persons are genuinely in a committed partnership

With regards to the argument that there is a lack of clarity as to what is required or what conditions need to be met with regards to the duration of a relationship and the period of cohabitation in order to be eligible to apply for a residence card as the partner of the EU citizen the Court disagreed and held: There is, in my view, no lack of clarity in the 2015 Regulations and in the other resources so that an applicant may readily understand the proofs to be met.

The Court found that the Minister did not impose an unlawful requirement of two years prior cohabitation, the Court accepted the Minister’s case that the two year cohabitation is not applied as a strict requirement and is used flexibly. The Court found that any imposition of a two year strict requirement could not be imposed without amending the legislation. The Court did not accept the argument that the two year cohabitation requirement was mandatory in nature.

It is beneficial to applications to now have confirmation that the Minister does not impose a mandatory two year cohabitation requirement and that the Minister should assess each case on its own particular facts.

Please contact the office if you wish to make an EU Fam Residence card application for yourself or your family member.

The full judgement will be published shortly.

SUPREME COURT DETERMINES DEFINITION OF A CHILD FOR PURPOSES OF FAMILY REUNIFICATION

The recent ruling of the Irish Supreme Court in X v Minister for Justice and Equality [2020] IESC 284, was delivered on 7th June 2020. The Supreme Court held that the definition of child for the purposes of Section 56(9) of the International Protection Act 2015 is confined to a biological or adopted child only.

The judgement overturns the finding in the High Court that the definition of child within the International Protection Act could include more far reaching interpretations of “child”, citing the variety and complexity of family relationships.

The Court highlighted the wording of the legislative provision, is “child of the sponsor”. The Court found that the clear reading of this provision limited the scope of children to biological and adopted children. The Court further noted that other children were excluded from the definition of family members for immigration purposes including children over the age of 18. The Court found that the provisions of Section 56(9) where much more restrictive than its predecessor, The Refugee Act 1996.

The Court also found that it would be wrong and incorrect of the Minister to request DNA evidence as a matter of course in respect of refugee family reunification applications. The Court did however find that were there was a legitimate reason or cause to doubt parentage or family relationship it can be an appropriate action of the Minister to request such evidence. The Court noted that the Minister does have guidelines with respect to DNA evidence in respect of D join family visa applications, but that it did not have guidelines in place in respect of refugee family reunification.   The Court noted that DNA goes to the heart of a person’s identity and should only be requested if there is no alternative method to resolve the issues at hand.

The Supreme Court allowed the Minister’s appeal and overturned the decision of the High Court.

If you have any queries regarding how this judgement may affect your application for family reunification, please do not hesitate to contact our office.

NO NEW VISA APPLICATIONS ACCEPTED BY INIS SINCE MARCH 2020

RTÉ News has reported that the Irish Naturalisation and Immigration Service has not accepted any new visa applications as of 20th March 2020 due to Covid-19.

A spokesperson from the Department of Justice was quoted as saying:

“While it will still be possible to apply for an Irish visa online in the normal manner, these temporary measures mean that applicants will not be able to complete their application process. However, any application made online will remain valid until such time as restrictions are lifted.”

VFS Global, which provides a wide range of visa-related services, has also closed many of its Visa Application Centres.

The VFS website states that Ireland has suspended visa services globally as of 23rd March 2020.

This is despite the fact that a limited category of “Priority/Emergency” visas are still being processed, as outlined in INIS notice issued on 21st March 2020. These include professionals, health researchers and elderly care professionals, immediate family members of Irish citizens who are returning to their ordinary place of residence in Ireland, persons legally resident in the State, and persons entitled to avail of the provisions of the EU Free Movement Directive.

In instances where the local Consulate or Embassy is unable to process visa applications falling within these categories due to local Covid-19 restrictions, the Department has arranged to accept visa applications in its Dublin Visa Office.

RTÉ News questioned whether the decision to cease accepting new visa applications since March 2020 was allowing any backlog of applications to be cleared, and asked the Department of Justice to clarify what the situation is today.

The Department responded:

“…it is not possible to state a total number of employment visa applications on hand at a specific point in time, be it December or now. This is because of the fact that visas are received and processed throughout our network of missions globally and not just at the office here in Dublin.”

The spokesperson for the Department also stated that the intention is to resume accepting visa applications as soon as it is safe to do so.

The article can be read in full here.

If you or a family member have any queries about applying for an Irish visa, please do not hesitate to contact our office.

POSSIBILITY OF GRANTING LEGAL STATUS TO UNDOCUMENTED MIGRANTS DISCUSSED AT GOVERNMENT TALKS

The Irish Independent has reported that a proposed scheme to regularise the status of undocumented migrants in Ireland has been discussed as part of Government formation talks between Fianna Fáil, Fine Gael and the Green Party.

According to the article, published by the Irish Independent on 21st May 2020, the parties are in talks to establish a scheme that would allow undocumented migrants in Ireland to apply to regularise their status. The parties proposed that the criteria for such a scheme would be set out within 18 months of the new Government taking office.

At present there has been no final agreement on this scheme and any developments on this matter would be dependent on Fianna Fáil, Fine Gael and the Green Party forming a coalition Government together.

It is estimated that there are currently 15,000-17,000 undocumented people living in Ireland, approximately 2,000 to 3,000 of whom are thought to be children. The Migrant Rights Centre Ireland (MRCI) states that 93% of undocumented migrants are in work, including as many as 29% who work as carers.  The Covid-19 pandemic has also highlighted that many undocumented migrants are employed as key essential workers, working in difficult and challenging situations to keep the country going during this ongoing crisis.

We at Berkeley Solicitors would fully support the implementation of a scheme to regularise the status of undocumented migrants and will publish any future developments on this on our website.

The full article can be read here.

If you or a family member have any queries about your immigration status, please contact our office.

UPDATED INFORMATION ISSUED BY THE IMMIGRATION SERVICE DELIVERY RELATING TO SHORT STAY VISAS AND STAMP 3 PERMISSION HOLDERS

The Immigration Service Delivery has recently updated their set of frequently asked questions relating to Covid-19 and its effects on immigration permissions in the State.

The set of questions has addressed concerns of those regarding their ability to financially support themselves in the State whilst holding visitor visas and Stamp 3 permission that has been extended during Covid-19.

Addressing the query of such permission holder’s ability to take up employment, the ISD have reiterated that the renewal of permission allows you to remain in the State on the “current conditions” in which you are resident in the State and therefore may not take up employment if you are here on a visitor visa or on Stamp 3.

However, the ISD have mentioned a possible exception to this rule confirming that people on visitor permissions may apply for a change of status, stating that “in light of the current COVID-19 crisis, the Minister for Justice and Equality may examine a situation on a case by case basis in which a person in the State wishes to change permission to allow them to take up employment with the HSE, as per the HSE’s “Be on Call for Ireland” campaign. The person would have to show the Minister evidence of a job offer from the HSE, where the job offer is for a period beyond the two-month extension referred to”.

Referring to the “Be On Call for Ireland” Campaign, the updated notice details that if you are on Stamp 3 and have experience in the area of healthcare you are encouraged to contact the HSE in this regard. Should you qualify under the campaign, you are asked to provide written confirmation of same to INIS in order to apply for change of immigration permission.

This is a very encouraging clarification and we would submit that the Minister should continue to promote self-sufficiency in the State to those who are able to take up employment. These possible avenues to apply for a change of status provides an opportunity for people to contribute to the State in a positive way, especially during the ongoing Covid-19 pandemic.

We submit that during the present pandemic, the importance of employment and the dignity attached to work and employment has been highlighted. We submit that Stamp 3 is always an inappropriate stamp for an adult person who is willing and able to work. 

We at Berkeley Solicitors are happy to advise anyone on their queries relating to their immigration Status in the State or on any possible avenue to making a change of status application during Covid-19.

The Be On Call for Ireland Campaign can be accessed here.

The full updated set of FAQs can be read in full here.

DEPARTMENT OF JUSTICE ANNOUNCES TEMPORARY ARRANGEMENTS FOR THOSE AWAITING FIRST TIME REGISTRATION

The Department of Justice has announced that anyone who is present in the State with a current, valid permission to remain and is still awaiting their first registration, can now make an electronic application to the Registration Office to request a letter confirming their permission to remain in the State and the conditions attached.

This is a temporary measure which will apply from now until the 20th July 2020.

The notice, published on 21st May 2020, states as follows:

“In light of the uncertainties caused by the COVID-19 pandemic and the difficulties some people can encounter due to not having an IRP card, as a temporary measure between now and 20th July 2020, anyone in the State awaiting their first registration, and who has a current, valid permission to remain, but does not have a current permission letter can apply to the Registration Office to request a letter confirming their permission to remain in the State and the conditions attached. 

For international English Language Students, the extension means that they may continue to work if they wish, but must be enrolled in a course of study to adhere to the conditions of their permission.  

All required documentation (see website for details) should be scanned and included in the application email. All eligibility criteria will continue to apply. 

Applications may be submitted electronically to the Registration Office, Burgh Quay, Dublin ([email protected])”

The full notice can be accessed here.

If you or a family member are affected by this notice, please contact our office to discuss.

UK BILL INTRODUCED TO END FREE MOVEMENT OF PEOPLE

The United Kingdom has recently passed The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which was first introduced on 5th March 2020. The Bill, which ends the principle of free movement of people in the United Kingdom, is set to be introduced upon the conclusion of the transitional period on 31st December 2020.

The Bill, passed by 351 votes to 252 on 18th May 2020, has marked concrete developments in the UK’s transition into a points-based immigration system. The UK government clarified in February that points will be awarded for certain requirements such as the ability to speak English, having a job offer from an approved employer and meeting a salary threshold of £25,600. Points may also be awarded for certain qualifications or for working in an area where there is a shortage of workers.

However, the Bill clearly prioritises migrants with “high skilled jobs” which concerningly appears to be determined based on financial thresholds above any other factor.

UK Home Secretary, Priti Patel, has stated “We’re ending free movement to open Britain up to the world. It will ensure people can come to our country based on what they have to offer, not where they come from.”

The Bill includes provisions intended to uphold the historical entitlement of Irish citizens to enter and remain in the UK without the need of seeking permission or leave to do so.

These provisions relating to Irish citizens will operate alongside the Common Travel Area (CTA) regime once EU freedom of movement comes to an end.

Under the CTA, Irish citizens are permitted to move freely between Ireland and the UK and vice versa. This extends to the right to enter, reside, pursue education, take up employment and access State benefits. On the 8th May 2019, both the Irish and UK government signed a Memorandum of Understanding which reiterated their commitment to the CTA and to the maintenance of the derived rights from this agreement.

The Bill has made it clear that the rights being afforded to Irish citizens are more far-reaching than those afforded to other EEA nationals. The UK government’s position is that Irish people will have a general right to reside in the UK which is separate to their rights as EU citizens.

Although this Bill provides legislative certainty to Irish citizens on their rights to enter and reside in the UK without leave, disappointingly the provisions are not yet provided for in comprehensive detail.

The Irish  Human Rights and Equality Commission called for an international treaty in their November 2018 report to formalise common immigration rules and the rights of Irish citizens in the UK during the wake of the uncertainty caused by Brexit.

The Bill places EEA and Non-EEA nationals on the same footing in terms of immigration permissions in the UK.

The free movement of people across 28 countries, considered to be one of the greatest achievements of the European Union, has been significantly reduced by this Bill.

The UK’s new system will take a restrictive economic approach to those considered eligible to travel to the UK and will disproportionately affect those not considered to be “skilled workers” i.e. those who earn less than £25,600 per annum.

This concern caused by this Bill is exacerbated by the ongoing Covid-19 crisis, and the proposed immigration rules will undoubtedly deem many healthcare workers ineligible to reside in the UK.

Despite the Home Secretary referring to the introduction of a fast-track visa for doctors, nurses and other health professions, the passing of this Bill will understandably create a huge amount of worry to those already facing extreme pressure and uncertainty caused by both Brexit and Covid-19.

It’s expected that this Bill will consequently restrict the freedom of movement of UK citizens in both the EU and outside the EU.

It seems that further details of the UK’s move towards a controversial points-based system will likely not be formalised until the conclusion of the transitional period in December 2020.

 

UK GOVERNMENT CONFIRMS PEOPLE BORN IN NORTHERN IRELAND ARE TO BE CONSIDERED EU CITIZENS FOR CERTAIN IMMIGRATION PURPOSES

The UK Government has announced a change to its immigration laws following a landmark court case involving Derry woman Emma De Souza and her US-born husband Jake De Souza.

The case concerned the right of people in Northern Ireland to be considered Irish or British citizens, or both, as per the terms of the 1998 Good Friday Agreement.

Mr De Souza had applied to the UK Home Office for an EEA residence card to live and work in Northern Ireland on the basis of his marriage to Ms De Souza in 2015. The application was rejected on the basis that Ms De Souza was considered a British citizen because she was born in Northern Ireland, and therefore she was not entitled to EU free movement rights. This was despite the fact that Ms De Souza had never held a British passport and identified as an Irish citizen.

The UK Home Office originally argued that people born in Northern Ireland are automatically British citizens according to the 1981 British Nationality Act, even if they identify as Irish. It stated that the only way it could deal with Mr De Souza’s application was if Ms De Souza renounced her status as a British citizen.

Ms De Souza argued that the UK’s immigration laws were incompatible with the right of Northern Irish people to be accepted as Irish or British, or both, under the Good Friday Agreement.

The UK Home Office has now made a change to its immigration laws, confirming that British and Irish citizens born in Northern Ireland will be treated as EU citizens.

This decision has far-reaching consequences in light of the UK’s EU Settlement Scheme, which is open for applications until June 2021. The Scheme allows EU citizens and their family members to apply to reside in the UK post-Brexit. Until now, family members of British or dual British-Irish citizens from Northern Ireland were ineligible to apply for status under the Scheme.

All citizens in Northern Ireland will now have the right to apply for a non-EEA family member to remain in the UK through the Scheme, up until June 2021. This means that British citizens in Northern Ireland now have more rights than their counterparts in England, Wales and Scotland.

Speaking about the announcement, Ms De Souza commented:

“These changes are on the back of years of campaigning for the full recognition of our right to be accepted as Irish or British or both under the Good Friday Agreement.

We have always contended that no-one should be forced to adopt or renounce a citizenship in order to access rights, to do so goes against both the letter and the spirit of the Good Friday Agreement, the Home Office now concedes that point.

These changes will only apply to Northern Ireland and recognise the unique status that the region holds within the United Kingdom. Something that we have longed called for.

We personally know a number of families that will benefit from this change and are filled with joy and relief that these families will not face calls to renounce British citizenship or face years in court like we have.”