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RETROSPECTIVE AMENDMENT OF STAMP 2 A RESIDENCE PERMISSION TO STAMP 3 FOR SPOUSE OF PHD STUDENT, REPRESENTED BY BERKELEY SOLICITORS

Berkeley Solicitors has recently received a significant decision in which the Department of Justice and Equality has agreed to retrospectively amend Stamp 2A permission, incorrectly assigned to our client, to Stamp 3 immigration permission for a number of years.

Our client is the spouse of a PhD student here in Ireland. Our client was dependent on her husband and applied for a visa to Ireland.

She was initially issued Stamp 3 permission; however, she was then issued with stamp 2 A permission at all subsequent registrations.

Stamp 2 A is described as follows on the INIS website:

“Stamp 2 A indicates permission for full time study in Ireland for a course that is not on the official Interim List of Eligible Programmes (ILEP), for a specified period. Stamp 2 A is not reckonable as residence when applying for citizenship by naturalisation.

You may be given Stamp 2A in the following circumstances:

  • Semester abroad (ie at an Irish university/college)
  • Study at a private secondary school in Ireland”

The issuing of stamp 2 A to our client was contrary to the Minister’s policy to issue stamp 3 permission to the spouses of PHD students. Stamp 2 A was at no time appropriate to her circumstance. She had never been a student in the State, and has always resided here as the dependent of her husband.

The wrongful issuing of stamp 2 A permission deprived our client of a number of years of reckonable residence, which she was entitled to by way of the Minister’s policy.

When the couple had a baby, they intended to make an application for an Irish passport. However, in order to obtain Irish citizenship for a child born in Ireland after 1st January 2005, the child’s foreign national parent must be legally resident in Ireland (this includes Northern Ireland) for 3 out of 4 years immediately before the child was born in Ireland.

As Stamp 2 is not reckonable as residence towards citizenship by birth, our clients’ baby was being deprived Irish citizenship because of the Minister’s error to issue stamp 2 A to our client.

Our office applied to the Minister to rectify this mistake by retrospectively amending our client’s previous permissions from stamp 2 A to stamp 3, based on the fact that a mistake was made on each occasion that a Stamp 2 A permission was issued to her.

A decision was recently issued to our clients which confirmed that her permission was retrospectively amended to the appropriate stamp 3 permission spanning over a number of years, thereby rendering the couple’s child eligible for Irish citizenship by birth.

We are delighted for our clients to have resolved their immigration difficulties.

We also think this is an extremely important and highly positive precedent for others who may have been issued the wrong residence permissions and confirms that, if appropriate, the Department of Justice and Equality can back date residence permission retrospectively.

If you or a family member are affected by the issuance of inappropriate immigration permission please do not hesitate to contact our office.

THE PROBLEM WITH STAMP 3 IMMIGRATION PERMISSION

Persons on Stamp 3 immigration permission are restricted from taking up employment or working in Ireland.

Our office has met many clients whose lives are severely negatively impacted by holding Stamp 3 permission.

Many adults, who wish to work and integrate into Ireland are prevented from doing so unless their area of expertise or work experience leaves the option of an employment permit open to them. Even then obtaining a work permit is not always possible. The vast majority of occupations are ineligible for employment permits.

Many people holding Stamp 3 have been offered secure employment but have been unable to take up their employment offers due to the restrictions placed on them by their immigration status.

We submit that to put adults, who are able and willing to work in this position is unnecessary and cruel.

It prevents individuals from getting to know people in Ireland and fully integrate. Employment gives people confidence and a sense of purpose. Being unable to work negatively impacts on a person’s mental well being. A large part of a person’s self-worth and sense of being is derived from their employment.

We submit that the Minister should promote the ideals of employment and self-sufficiency and should not leave adults who are able to work in such a position. Persons on Stamp 3 are required to remain dependent on family members well into their adulthood.

Young adults are most affected by the issuance of Stamp 3 permission at an extremely important and formative part of their lives. Our office is even aware of adults with children of their own being issued Stamp 3 permission to reside, leaving them unable to support themselves or their own families.

We submit that allowing persons to work serves in the best interests of the state as it will allow persons to contribute to the economy and promotes integration and the building of communities.

We submit that there is no risk to state resources, funding or expenditure in the granting of Stamp 4/ Stamp 1 without the need for a work permit to persons currently resident on Stamp 3 as the Minister can make it a condition of a person’s immigration permission that they cannot access State supports.

The absolute prohibition on work was found to be unlawful in respect of persons seeking asylum in Ireland in the case of  of N.V.H. v Minister for Justice and Equality and ors [2017] IESC 35 in which it was held that the ability to engage in work is connected to the dignity of the human person and that prohibiting a non-citizen, in this particular case an asylum seeker, from seeking employment is therefore contrary to the Constitution. We submit that the same reasoning should apply to individuals currently on Stamp 3 permission in the State.

We highlight in particular the Court’s judgment at paragraphs 15-17 in which it is stated:

“15…Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself. However even approaching the matter with a healthy dose of skepticism, it must be recognised that work is connected to the dignity and freedom of the individual which the Preamble tells us the Constitution seeks to promote.

Persons on Stamp 3 permission are not eligible to take up employment in the State until if and when he or she naturalises as an Irish citizen- given the current processing times this could amount to anywhere from 5 to 6 years if not more.

We submit that the restriction on work created by Stamp 3 immigration permission is unnecessary and unreasonable.

If you or a family member are affected by Stamp 3 immigration permission please do not hesitate to contact our office.

IMPORTANT JUDGEMENT RELATING TO PERMITTED FAMILY MEMBERS IN EU TREATY RIGHTS APPLICATIONS: AF AND AF V THE MINISTER FOR JUSTICE AND EQUALITY

Berkeley Solicitors is happy to announce that our clients have obtained a successful decision from the High Court in relation to permitted family members in EU Treaty Rights applications pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. Mr Justice Barrett delivered this important judgement on the 26th September 2019.

We believe that this judgment will have an extremely positive impact on permitted family members for such applications.

The case concerned two applicant brothers- ‘Brother A’, a British citizen resident in Ireland for employment purposes and ‘Brother B’, the dependent of Brother A and a Pakistani citizen living in Ireland as a student since 2014.

The High Court found that the Minister’s refusal of the application for an EU residence card for the dependent brother was unreasonable and to some extent irrational, and therefore quashed the Minister’s decision.

The court accepted the applicant’s arguments that Brother B’s country of previous residence is Ireland, contrary to the Minister’s argument that the country of previous residence was Pakistan.

Relying on Rahman, the court reaffirmed that the phrase “in the country from which the person has come” in relation to permitted family members, as appears in both the Directive and the 2015 Regulations, refers to the State he was resident in when he applied to join the Union citizen.

At paragraphs 7 and 8, the court states that:

Although visa applications are typically made outside Ireland, in this instance, Brother B had permission in his own right to reside in Ireland as a student on the date the application was made and therefore the Minister was mistaken in maintaining that Pakistan was the country Brother B came from.

The court further clarified that even in the case of (incorrectly) considering Pakistan as the country from which Brother B had come, Brother A’s actions with respect to housing and financing Brother A’s education in Ireland would remain relevant insofar he was consistently supporting by his brother to the point of dependency.

Mr Justice Barrett specifically addressed the nature of evidence provided in support of EU Treaty Rights Applications referring to the statements made by the applicants. He reaffirmed that when applicants make/sign the declaration for the completion of the EU1A form, certain weight is afforded to the evidence provided in and with the application.

Mr Justice Barrett took a fair and reasonable approach to the provision of documents maintaining that very few people can produce/receive or retain documentation with regards to every aspect of their lives, even in the case of the most important aspects of one’s life.

The Judge remarked that in reality there is a limit to what one applicant can produce in terms of documents.

Mr Justice Barrett went on to provide a summary of the concept for dependency confirming that it means:

15. “that members of the family of a community national… need the material support of that Community national… in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national”.

Referencing Kuhn and Ors, Mr Justice Barrett echoed that material support includes financial contribution but does not require that the entirety of the cost of essential needs be covered by person providing support.

This judgement advocates, in light of Article 3(2) of the Citizen’s Right Directive, for a relatively generous test as to what constitutes dependency.

A point that the court felt important to note, was that in a situation where material support is not provided directly to the dependent but to others, the dependent is not precluded from being described as such because dependent relationships can include both direct dependency and/or vicarious dependency.

Specifically addressing the issue of dependency in Pakistan, in paragraph 23, Mr Justice Barrett found the Minister’s assertion that the applicants had not provided evidence that without the small cash transfers, Brother B would not have been able to support himself in Pakistan was unreasonable.

Highlighting that Brother B was unemployed in Pakistan and therefore clearly dependent on someone for his income, the High Court was unable to see in this regard:

23(ii). “how Brother B could prove that if he was not in the position that he found himself to be in, he would still not have been able to support himself; how could he possible demonstrate that?”.

In conclusion, the court granted an order of certiorari which means that the Minister’s refusal of the application as a result of the court’s findings is withdrawn and that the application be reconsidered by the minister.

We believe that this judgement will have a positive effect for other applicants who are permitted family members and awaiting the outcome of their EU residence card applications.

The full judgement will be posted here shortly.

 

 

BRITISH CITIZENS AND THEIR FAMILY MEMBERS IN IRELAND- THE RIGHT TO RESIDE IN THE EVENT OF A NO-DEAL BREXIT

As previously highlighted on Berkeley Solicitor’s Immigration Blog, the family members of British citizens resident in Ireland on the basis of EU FAM Residence Cards have received recent correspondence outlining “transitional arrangements” will be put in place in the event of a no- deal Brexit.

There is no clear outline in these letters as to what these transitional arrangements will be.

This has caused much anxiety to the holders of the EU FAM residence cards as highlighted by the Irish Times in their article of the 18th September 2019.

What is not mentioned is this article is that the further information and clarification outlined on The European Commission’s website which currently states as follows:

“Member States have prepared or adopted national contingency measures to ensure that UK nationals and their non-EU family members could remain legally resident in the immediate period after a no-deal withdrawal. To provide further clarity on the situation, the Commission, based on the information provided by the EU27 Member States, makes available an overview table and a Q&A on UK nationals’ residency rights in each of the EU27 Member States.  

Ireland

I am a UK national living in Ireland. In case of a no-deal scenario, what should I do to keep my residence rights after Brexit date? When should I do it?

All UK nationals have a right under the Common Travel Area to live in Ireland.

You do not need to take any action to continue to live in Ireland after Brexit date.

What will my rights be?   

Under the Common Travel Area (CTA), British citizens can move freely to, and reside in, Ireland and can enjoy associated rights and privileges including access to employment, healthcare, education, social benefits, and the right to vote in certain elections.

The Government of Ireland and the UK Government signed a Memorandum of Understanding on 8 May 2019‌, reaffirming their commitment to maintaining the CTA in all circumstances.

More details can be found here

How can I travel to other Member States or cross the EU external borders?     

You will have to carry your passport, and fulfil any visa requirements, which may be introduced by other Member States.

 I have resided in Ireland for more than five years. How can I obtain EU long-term residence status?   

Ireland, does not participate the Directive (2003/109/EC) which deals with long term residence for third country nationals.  Therefore, the EU long-term resident status does not apply for UK nationals in Ireland.

 My family members (spouse, children) are citizens of a third country (neither EU nor UK). What should they do to keep their residence rights?

  1. a) If they already have a residence card issued under EU free movement law, this will be considered as their temporary residence permit until 31 October 2020, i.e. 12 months after Brexit date. After 31 October 2020, i.e. 12 months after Brexit date, they will have to apply for a new residence permit, according to the law that will be applicable at that time.
  2. b) If they do not have a residence card, they will have to apply for a residence permit as soon as possible to regularise their position in the State. For information on the application process, please visit this website inis.gov.ie.”

It appears that the current plan is for family members of British citizens to hold their EU Fam residence card for one year as a “temporary residence card”, whilst the new “transitional provisions are put in place.

This suggests that the family members of British citizens do not have to take any steps as their current EU residence card will serve as their temporary residence permission pursuant to Irish law for the first year at least.

If you or your family members are affected please do not hesitate to get in contact with our office.

The European Commission Webpage can be accessed in full here.

 

CHENCHOOLIAH V MINISTER FOR JUSTICE- IMPORTANT JUDGEMENT ON RIGHTS OF EU CITIZEN SPOUSES

The European Court of Justice delivered a very significant judgement in the case of Chenchooliah v Minister for Justice on the 10th September 2019, following a request for a preliminary ruling from the High Court in 2018.

This judgement has brought clarity regarding the correct procedure for the spouses of EU citizens, whose EU citizen spouse has left Ireland and therefore have lost their right to reside under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 to have their right of residence considered by the Minister.

In the proceedings it was confirmed by the Court that Ms Chenchooliah ceased to be a beneficiary of the Directive and Regulations following the departure of her EU Citizen husband from Ireland.

The Court found that the question nevertheless remains as to whether Ms Chenchooliah’s position was governed by the Directive or only by the national law.

The Court found that Ms Chenchooliah ‘s circumstances are covered by the EU Directive, stating that the Directive not only contained the conditions for the granting of residence rights but it also makes provision for a set of rules to cover situations when a right of residence is lost.

The Court found that Article 15 of the Directive and the procedures provided for by Articles 30 and 31 apply to all decisions restricting free movement of Union citizens and their family members in cases where there are no public policy, public security or public health matters, as in this case.

The Court noted that this Article also provides that the State may not impose a ban on entry or expulsion in these circumstances.

The Court concluded that to find otherwise would deprive Article 15 of its substance and practical effect.

The Court concluded that in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made against Ms Chenchooliah cannot under any circumstances, impose a ban on entry into the territory.

The practical effect of this decision may be very far reaching. The Court has concluded that spouses of EU citizens who were at one time covered by the provisions of the EU Free Movement Directive cannot be issued with notices of intention to deport under national law (Section 3 of the Immigration Act 1999 (as amended)) as the consequence of a refusal of these applications results in a deportation order, which imposes an indefinite ban on entry to the State.

Furthermore, the Minister’s decisions in these cases must be made in light of the procedural safe guards laid down in the Directive and Regulations. The ability to make an expulsion order under the Directive are restricted to cases concerning public health, security and public policy.  Deportation orders are on the other hand made at the discretion of the Minister following a full consideration of the applicant’s circumstances.

It now follows that many persons have been issued notices of intention to deport unlawfully and are currently having their case considered under the incorrect procedure.

Many persons may in fact have been issued with a deportation order or even have been deported from the State unlawfully.

This case affects the spouses of EU citizens whose EU citizen spouse has left the state or has stopped exercising EU Treaty Rights in Ireland.

We would submit that many people who have received deportation orders or notice of intention to deport letters and were previously resident on the basis of EU Treaty Rights, may now have grounds to request the deportation orders to be revoked. Any persons who believe they are affected by this decision should now contact our office for further advices.

The full judgement can be read here.

NEW PRE-CLEARANCE PROCESS FOR NON-EEA DE FACTO PARTNERS OF IRISH CITIZENS

In order to streamline the process for Irish emigrants to return home with their Non-EEA De Facto Partners, a new pre-clearance process has been introduced.

Launched on the 19th of August 2019, this new process enables De Facto Partners of Irish nationals to apply for their permission to reside in Ireland prior to travelling, providing heightened certainty for those planning on moving home to Ireland with their De Facto Partners.

Under the previous system, the application process for De Facto partners could only begin after their arrival in Ireland. The new process aims to speed up the permission process, thereby allowing applicants to register, reside and work in Ireland without delays.

For immigration purposes, a person is considered a De Facto Partner, opposite or same sex, of another person if they have a mutual commitment to a shared life to the exclusion of others, akin to the practice of marriage or a civil partnership but not in law.

The Minister for Justice and Equality hopes that “this will encourage more people to come home… While away, some have met life partners and perhaps even started their own families. We want to show these people that Ireland is ready to welcome them home and that we will provide a clear immigration and labour market pathway for their De Facto Partners”.

For more information, please read here

EFFECTS OF BREXIT FOR NON-EEA FAMILY MEMBERS OF UNION CITIZENS RESIDENCE IN IRELAND

UPDATE- INIS has provided a welcomed update on the effects of Brexit on Non-EEA family members of British citizens seeking EU Treaty Rights currently residing in Ireland.

On the 31st of October, the United Kingdom will leave the EU and become a third country unless a draft withdrawal agreement is ratified prior to this. Brexit has left many unanswered questions for Non-EU/EEA British citizen family members.

Although currently entitled to avail of the European Communities (Free Movement of Persons) Regulations 2015, a no-deal scenario would mean that Non-EEA family members of British citizens will no longer be able to exercise EU treaty rights. Encouragingly, if you are currently a Stamp 4 EUFam card holder, INIS advises that you should have no concerns regarding your continued residence after the 31st of October in the State.

The Department of Justice and Equality has been contacting holders of Stamp 4 EUFam residence cards confirming that “transitional arrangements” are being put in place in the event of a no-deal Brexit. These arrangements will facilitate the transfer of free movement rights under domestic immigration arrangements. The objective of these transitional arrangements is to retain similar rights to those currently enjoyed as a non-EU/EEA family member of a British citizen.

If you are a non-EU/EEA British citizen family member and currently reside in Ireland, any changes in your personal circumstances, such as your civil status, your citizenship or that of the British citizen family member should be brought to the attention of EU Treaty Rights Division.

INIS has recently reaffirmed that where applications are pending, no action is currently required.

For more information, please read here

You can contact EU Treaty Rights Division by email at eutreatyrights@justice.ie or by post at:

EU Treaty Rights Division
Irish Naturalisation and Immigration Service
13/14 Burgh Quay
Dublin 2.

NEW ONLINE IMMIGRATION RENEWAL SYSTEM FOR DUBLIN-BASED STUDENTS

In order to support the increasing number of non-EEA students, a new online renewal immigration registration system has been established.

Starting 26th August 2019, Dublin-based students from outside of Europe will be able to renew their immigration registration online without any additional fees. Nearly 8,000 students are expected to use the new online renewal system in the coming months.

Currently, the immigration registration renewal system requires Dublin based non-EEA students to have an in-person appointment with INIS at Burgh Quay Registration – which usually means long queues especially toward the beginning of a new academic term.

However, this new online registration system should mitigate the long queues saving time for students and opening up appointment times for other customers at the INIS office.

As of now, the online renewal immigration registration system is only available to Dublin based non-EEA students, who have previously registered with INIS and are registering for at least their second year of study. However, depending on the success of the online immigration registration renewal system in Dublin, INIS will consider expanding it other areas and customers as well.

UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  here.

MINIMUM SALARIES RAISED FOR EMPLOYMENT PERMITS FROM JANUARY 2020 AND OTHER IMPORTANT CHANGES

The Employment Permits (Amendment)(No.2) Regulations 2019, 9th July 2019 amend the Employment Permit Regulations 2017-2019.

A number of the new regulations are now in force and a number will come into force in the new year, on 1st January 2020.

The required period of validity of an applicant’s passport has been reduced from 12 months to 6 months. There has also been a change to the numbers of employment permits that can be issued in respect of particular professions- dairy farming and the meat industry.

The most notable amendment is that there is to be an increase in the minimum salary required for a critical skills employment permit from €30,000 to €32,000 for an occupation on the highly skilled occupations list and from €60,000 to €64,000 for other professions.

In respect of General Employment permits, the period of time a job has to be advertised with the Department of Employment Affairs and Social Protection to satisfy the Labour Markets Needs test will also be increased from 14 days to 28 days.