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IILA

FOUNDING OF THE IRISH IMMIGRATION LAWYERS ASSOCIATION

Karen Berkeley is proud to be a founding member of the Irish Immigration Lawyers Association.

The IILA will be launched on Friday 23rd July 2021 at 3 pm and will include addresses from An Taoiseach Micheál Martin and High Court Judge Tara Burns who is in charge of the asylum and immigration list.

The Irish Immigration Lawyers Association will:

  • Run regular CPD events,
  • Have an online forum for the purpose of sharing and exchanging knowledge, experience and research,
  • Liaise with relevant Government departments, the Courts Service, Chief State Solicitor’s Office and the Immigration, Asylum and Citizenship Bar Association in relation to issues of practice and procedure or proposed legislative changes

Solicitors who hold a practising certificate and their associates can register their membership at www.iila.ie.

Further information on the IILA can be found at www.iila.ie

Berkeley Solicitors offers its congratulations to the Irish Immigration Lawyers Association and wishes it every success in the future.

KAREN BERKELEY ON THE ACTIVIST LAWYER PODCAST

Karen Berkeley was delighted to be invited as guest on to the Activist Lawyer podcast to discuss her experience working as an immigration solicitor.

Check out the conversation here:

EMPLOYMENT PERMITS NOW OPEN TO HEALTHCARE ASSISTANTS

In an announcement published on 14th June 2021, Minister Damien English confirmed that healthcare assistants will now be eligible to apply for employment permits in the State.

Eligibility for employment permits in Ireland is determined by the critical skills list and ineligible occupations list which are reviewed twice a year.

In deciding to remove healthcare assistants from the ineligible list it was noted that:

‘evidence within the healthcare sector suggest increasing competition for skilled candidates in several healthcare roles.’

In order to be eligible applicants must have a QQI Level 5 qualification after two years of employment.

Minister English commented that:

‘Our economic migration policy accommodates the arrival of non-EEA nationals to fill skills and labour gaps in the domestic economy in the short to medium term.’

The full announcement can be read at:

https://www.gov.ie/en/press-release/ab8d7-minister-damien-english-announces-changes-to-the-employment-permits-system/

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

LIFTING OF TEMPORARY ENTRY AND TRANSIT VISA RESTRICTIONS

In an announcement published on 15th June 2021, the Minister for Justice announced that the temporary entry and transit visa restrictions which were imposed on the 28th January 2021 have been lifted for several countries.

It was announced that:

‘From 16th June 2021 passport holders of the following countries can now travel to Ireland without applying for an entry or transit visa in advance of departure:

  • Argentina
  • Bolivia
  • Brazil
  • Chile
  • Guyana
  • Paraguay
  • South Africa
  • Uruguay’

It is important to note that nationals of these countries will still be required to meet the entry conditions of their proposed visit to Ireland.

In its notice, the Department of Justice stated that:

‘conditions of entry may include a requirement to have obtained a pre-clearance for certain purposes of stay.’

Persons travelling to Ireland can verify if they require pre-clearance here:

http://www.inis.gov.ie/en/INIS/Pages/check-irish-visa

Those who do not abide by the necessary entry requirements face the risk of being refused entry at the border.

The full announcement can be found at:

http://www.inis.gov.ie/en/INIS/Pages/visas-updates

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

ONUS ON MINISTER TO CARRY OUT RIGOROUS INVESTIGATIONS BEFORE MAKING AN ALLEGATION OF FRAUD AGAINST APPLICANTS

In the judgment of Mr Justice Max Barrett in the case of Jaysheering Saneecher and Nikolajs Samkovs V The Minister for Justice and Equality delivered on 5th May 2021 it was concluded that:

‘an investigation resulting in a determination that an application is fraudulent must be rigorous’

In this case, the Minister had disputed several facts which had been submitted by the applicants in their EU Treaty Rights application and therefore it was refused on fraudulent grounds.

In response to this Mr Justice Barrett commented that:

‘an error on a payslip could not, by itself, reasonably ground the serious finding that the applicant’s application was fraudulent.’ and that ‘the Minister’s investigation process in this regard was disproportionately lacking in rigour and did not yield a safe finding.’

Furthermore, Mr Justice Barrett was critical of the Minister’s failure to conduct a proportionality assessment and stated that:

‘a blanket cessation of any EU treaty rights presenting – is utterly dis-proportionate.’

This is a welcome judgment which reiterates that there is a strong onus on the Minister to carry out a rigorous and thorough investigation before making an allegation of fraud in an EU Treaty Rights application.

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

GUIDELINES ON MANDATORY HOTEL QUARANTINE IN IRELAND

On 26th March 2021 mandatory hotel quarantine was introduced in Ireland in an effort to prevent the spread of Covid-19.

The system is legislated for under the Health (Amendment) Act 2021 which makes provision for:

‘the mandatory quarantine of persons coming into the State from certain areas from where there is known to be sustained human transmission of Covid-19 or any variant of concern.’

Therefore, any person travelling from a designated State or any person who has been in a designated State 14 days prior to entering Ireland is obliged to complete mandatory hotel quarantine which can be pre-booked at:

https://www.quarantinehotelsireland.ie/

Additionally, any person arriving from a non-designated State without a ‘not detected’ PCR test result taken within 72 hours of their arrival must also complete mandatory hotel quarantine.

The list of designated States is updated regularly and the full list can be found at:

https://www.gov.ie/en/publication/b4020-travelling-to-ireland-during-the-covid-19-pandemic/#designated-states-mandatory-hotel-quarantine

There are several circumstances under which a person can be exempt from mandatory hotel quarantine.

These include:

  • transit passengers who do not leave the port or airport before leaving the State
  • a person who has completed a full course of an EMA approved vaccine
  • persons travelling to the State to compete in a Sports Ireland certified sports event
  • an adult resident of Ireland who is accompanying a child who was not born in the State and has never previously been in Ireland, travelling for the purpose of becoming ordinarily resident in Ireland
  • a person who is returning to Ireland having gone abroad for unavoidable, imperative and time-sensitive medical reasons and in possession of medical certification of this
  •  a person arriving in the State in the course of their duty and who hold a valid Annex 3 certificate (ensuring the availability of goods and essential services)
  • drivers of a heavy goods vehicle arriving in the State in the course of their duty
  • airline pilots, aircrew, maritime master or maritime crew and who arrive in the State in the course of performing their duties
  • a person travelling to the State pursuant to an arrest warrant, extradition proceedings or other mandatory legal obligation
  • a member of An Garda Síochána or Defence Forces travelling to the State in course of their duty
  • a person travelling to the State for unavoidable, imperative and time-sensitive medical reasons and these reasons are certified by a registered medical practitioner or person with equivalent qualifications outside the State
  • a person having been outside of the State to provide services to or perform the functions of an office holder (under any enactment or the Constitution) or a member of either house of the Oireachtas or the European Parliament
  • diplomats and certain other categories of persons entitled to privileges and immunities in the State

Further information on these categories can be found at:

https://www.gov.ie/en/publication/3b8e1-mandatory-hotel-quarantine-your-questions-answered/#exemptions-from-mandatory-hotel-quarantine

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

PROCESSING OF LONG STAY JOIN FAMILY AND EUTR VISAS TO RESUME

In a notice published on 20th May 2021, the Minister has updated the terms of the current suspension on the processing of visas due to Covid 19.

We are happy to report that all join family visa D visa applications, as well as applications submitted under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 have been deemed Priority/Emergency cases and processing of same has resumed.

The processing of these applications has been suspended since 27th January 2021 due to the level 5 restrictions.

The Minister’s notice confirms:

 We can now confirm that we will add the following categories to the list of Priority/Emergency cases and resume processing of these categories immediately:-

Long-stay Join Family Members including

all Long Stay D Visa join family applications (includes Third country national family members of Irish nationals and persons exercising free movement under the EU Directive), and

Preclearance applications for: De Facto Partner of an Irish National; De Facto Partner of a Critical Skills Employment Permit Holder, or of a non EEA Researcher on a Hosting Agreement and Non EEA Family members looking to join a UK National in Ireland.

People travelling for business/employment purposes and granted an employment permit by Department of Enterprise Trade and Employment to meet an enterprise’s key business ‘.

We are happy to see that the processing of join family visas has resumed, many families have endured undue heartache and extreme difficulties caused by the separation caused by this visa suspension. We submit that many families have had their family and private life rights unlawfully impacted and infringed by the Minister’s blanket suspension of join family visas.

We also note the resumed processing of entry visas pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. It is our view that the blanket suspension of these visas was in breach of the terms of the Directive and Regulations, as well as being more restrictive and out of step with the recommendations in Council Recommendation (EU) 2020/912.

The notice confirms that the suspension is to remain in place for short-stay visa applications, except for cases that fall under Emergency/Priority criteria.

The Minister has also updated its policy with regards to the assessment of imperative family reasons:

* Applicants seeking to travel for imperative family reasons are assessed on an individual basis and are largely confined to emergency cases that may arise in a family situation. Applications will be determined by examining the circumstances and supporting documentation of each case on an individual basis. While we appreciate how difficult it is to be separated from a loved one or to miss a family occasion or milestone, unfortunately these do not constitute an imperative family reason for a short stay visa application at this time due to public health concerns.

The notice states that the Minister will continue to process pending applications and applications received, however it is stated that for successful applications the visa/ preclearance will only be issued if the application meet the Emergency/Priority criteria.

The notice further confirms that the Minister will continue to process appeal applications. Again, it is stated that unless the application falls within the Emergency/Priority criteria the visa will not be issued until such time as restrictions have been lifted.

The Minister’s notice states that Priority/Emergency cases that will continue to be accepted and processed include the following:

  • People travelling for business/employment purposes and granted an employment permit by Department of Enterprise Trade and Employment to meet an enterprise’s key business [See clarification 1];
  • patients travelling for imperative medical reasons;
  • transport workers or transport service providers, including drivers of freight vehicles carrying goods for use in the territory as well as those merely transiting;
  • pupils, students and trainees who travel abroad on a daily basis and Third-country nationals travelling for the purpose of 3rd level study;
  • Join Family applications;
  • Preclearance applications from De Facto Partner of an Irish National, De Facto Partner of a Critical Skills Employment Permit Holder, or of a non EEA Researcher on a Hosting Agreement and Family members looking to join a UK National in Ireland;
  • persons travelling for imperative family* or business reasons;
  • Persons entitled to avail of the provision of the EU Free Movement Directive;
  • diplomats, staff of international organisations and people invited by international organisations whose physical presence is required for the well-functioning of these organisations, military personnel and police officers, and humanitarian aid workers and civil protection personnel in the exercise of their functions;
  • passengers in transit;
  • seafarers;
  • journalists, when performing their duties.

The full announcement can be read at:

http://www.inis.gov.ie/en/INIS/Pages/visas-updates

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

HIGH COURT CHALLENGES TO THE SUSPENSION ON PROCESSING VISA APPLICATIONS

In a notice published on the 5th May 2021, it was announced that the suspension of processing new visa and preclearance applications would continue until further notice.

Our blog post on this extension can be read here:

https://berkeleysolicitors.ie/suspension-of-visa-and-preclearance-applications-extended-until-further-notice/

Under these restrictions it is currently only priority or emergency applications which are being processed.

The restrictions do not appear to be in line with the European Commission guidance dated 3rd May 2021, which  states the Commission is proposing that Member States ease the current restrictions on non-essential travel into the EU to take into account the progress of vaccination campaigns and developments in the epidemiological situation worldwide.”

Furthermore, Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction, at Annex II, states the specific categories of travellers with an essential function as:

“Passengers travelling for imperative family reasons;

“Persons in need of international protection or for other humanitarian reasons;”

We note this Council recommendation does not apply to Ireland, but acts as a guide, in respect of determining essential travel within the EU during the current pandemic.

The Minister’s ongoing suspension on issuing visa applications has greatly affected individuals and families, with many being separated for long periods of time.

We have successful made representations to the Minister on behalf of one client to issue the visa for his dependent mother due to “imperative family reasons.” However, unfortunately we are aware of a substantial number of clients who cannot obtain visas for their family, even though the visas have been approved.

In light of the difficult situation faced by the affected families, recent challenges have been brought before the High Court regarding the failure to process visa applications for family members of EU citizens.

If you require advices regarding any matters raised in this article, please do not hesitate to contact Berkeley Solicitors.

 

EUROPEAN COMMISSION OUTLINES PROPOSALS TO EASE RESTRICTIONS ON NON-ESSENTIAL TRAVEL

In an announcement published on the 3rd May 2021, the European Commission has proposed that Member States begin to ease current restrictions on non-essential travel from outside the European Union.

This announcement was made in light of the progress associated with the vaccine rollout as scientific advice indicates that the risk of transmitting Covid-19 is significantly lowered once a person has been vaccinated.

It is submitted that those who have received both vaccination doses will be permitted to enter the EU on presentation of a vaccine certificate.

The Commission has acknowledged that with the development of the Digital Green Certificate, Member States should also accept certificates from Non-EU nationals.

It is suggested that:

‘Member States could consider setting up a portal allowing travellers to ask for the recognition of a vaccination certificate issued by a non-EU country.’

The full Commission announcement can be found at:

https://ec.europa.eu/commission/presscorner/detail/en/ip_21_2121

In contrast to the Commission’s announcement, the Department of Justice issued notice on the 5th May 2021 that the suspension on processing non-priority visa and preclearance applications has been extended until further notice.

This notice can be found here:

http://www.inis.gov.ie/en/INIS/Pages/visas-updates

This means that the Minister is continuing to prohibit travel for non-EEA family members of Union citizens.

This does not appear to be in line with the current guidance from the European Commission.

 

BERKELEY SOLICITORS CONGRATULATES THE SUCCESSFUL APPLICANT AND LEGAL TEAM INVOLVED IN RECENT JUDICIAL REVIEW CASE

Berkeley Solicitors offers its congratulations to the successful applicant and legal team involved in the recent judgement MAH v The Minister for Justice , delivered on 30th April 2021.

The case involves a Somalian national who was granted refugee status in Hungary after fleeing from violent threats she had received from a fundamentalist group.

After facing further violence in Hungary, the applicant arrived in Ireland in 2016, where she applied for permission to reside.

The applicant is a qualified doctor and volunteers as a translator for members of the Somalian community and also with the Irish Cancer Society. Her lack of legal status in Ireland meant that she was unable to work in the State.

In February 2020, a deportation order was issued to the applicant, which was the subject of the Judicial Review proceedings before the High Court.

It was argued on behalf of the applicant that returning her to Hungary would amount to inhumane and degrading treatment, in breach of Article 3 of the Convention of European Human Rights.

In the judgment of Ms Justice Burns it is referenced that the applicant’s rights were not sufficiently protected in Hungary and that the Hungarian government were hostile towards migrants.

Ms Justice Burns assessed the Respondent’s consideration under Section 3 of the Immigration Act 1999 as amended, and stated her findings as follows:

I am of the view that the Respondent incorrectly assessed the COI; failed to consider whether the presumption that her fundamental rights would be upheld in Hungary had been rebutted; and failed to properly consider the Applicant’s employment prospects pursuant to s. 3(6)(f) of the 1999 Act, the Respondent’s determination in respect of the Deportation Order is vitiated by these errors.

In granting the applicant the reliefs sought, Ms Justice Burns summarised that:

‘the founding architects of the system of international protection which is in place in Europe today, would be of the view that we, as a people, have badly failed the Applicant in this case.’

Berkeley solicitors welcomes this very fair and just decision and hopes that it will benefit both the applicant and other non-nationals within similar circumstances.

If you require advices regarding any matters raised in this article, please do not hesitate to contact Berkeley Solicitors.