LONG STAY VISA APPLICATIONS AND THE FLEXIBILITY OF THE INIS POLICY DOCUMENT ON FAMILY REUNIFICATION, DECEMBER 2013
The INIS Policy document on Non-EEA Family Reunification, published in December 2013 provides a comprehensive statement on Irish national immigration policy in the area of family reunification. The policy lays out a number of overarching principles to the Minister’s assessment of applications for Non-EEA family members to live and reside with their Irish or legally resident family members in Ireland, as well as setting a number of specific thresholds relating to finance, income and dependency.
We submit that this policy should be applied in a fair and flexible fashion, taking account of the salient facts and circumstances of the particular applicant and their family members. The Executive Summary to the policy itself states “Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case”. “It is intended that family reunification with an Irish citizen or certain categories of non-EEA persons lawfully resident in the State will be facilitated as far as possible where people meet the criteria set out in this policy although of course each case must be considered on its merits”.
Paragraph 1.12 of the Policy goes on to State:
“While this document sets down guidelines for the processing of cases, it is intended that decision makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive.
We note that in cases relating to applications for spouses of Irish citizens to join and or reside in the State with their Irish citizen spouse, Paragraph 17.2 of the Policy document lays out the financial threshold in this regard, amounted to a cumulative gross income of €40,000 over three years, from employment/ self-employment. The policy states that income received through social welfare payment is excluded. The policy is silent on whether disability payments received via the Department of Social Protection is countable towards this figure. This issue has been somewhat addressed by a Dail Question of 9th November 2014:
“In general, the sponsor must be in a position to support such family members by not having been reliant on State benefits from the Irish State for a continuous period in excess of two years immediately prior to the application. Disability allowance payments are excluded from such a requirement. Since it must be assumed that such benefits recognise a lack of capacity to otherwise earn a living, the end result would be that a person on disability benefit could never benefit from family reunification. This would be unfair. Therefore, persons receiving disability benefits are considered eligible sponsors, subject of course to meeting any other necessary requirements.”
There still appears to be a lack of clarity with regards to carers allowance payments and the Minister’s position in this regard.
The policy itself must also be read alongside the case of Ifeyinwa Gorry and Jospeh Gory v The Minister for Justice and Equality, judgement delivered on the 30th January 2014. The judgement states that there is a prima facia right of residence under the Irish Constitution for the non-EEA spouse of an Irish national to reside in Ireland, although not every case will engage that right.
There is also a lack of clarity in relation to the Minister’s assessment of cases for family reunification for children of Irish citizens or legally resident Non-EEA citizens. The Policy itself states that children under 18 are regarded for the purposes of a family reunification application to be the “immediate family members” of the sponsor. The policy also specifically outlines that the age limit is extended up to the age of 23 where the child remains in education and dependent on the sponsor. In a number of decisions, it would appear the applications for family reunification for children over the age of 18 are being refused with their age being assessed as a factor, even were they remain in full time education.
We submit that the policy document should be used as a guideline framework to guide and assist decision makers in their assessment of applications for visas and for family reunification more generally. We submit that the policy should not be used rigidly and as a mechanism to restrict and prevent family reunification in cases where on assessment of the facts of the case, the most proportionate and reasonable decision should be positive