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RE-ENTRY VISAS NOW ABOLISHED FOR ADULT HOLDERS OF IRP/GNIB CARDS

As of 13th May 2019, visa required nationals who hold a valid IRP/GNIB card will no longer need a re-entry visa to travel back to Ireland. An individual will only need to be able to show their IRP/GNIB card and their passport or travel document to airline staff and immigration authorities as evidence of their right to travel to the State.

With this change Ireland has come into line with other EU Member States who rely similarly on residence permits rather than requiring re-entry visas from those holding immigration permission in the State.

This change has been long requested and will benefit an estimated 40,000 persons each year, taking away the need for them to pay a re-entry visa fee and submit their passport or travel document to the Irish Naturalisation and Immigration Service while awaiting the outcome of their application, which could take in and around five weeks to process.

It is important to note however that as minors under the age of 16 years are not issued with an IRP/GNIB card their parent or guardian will still need to apply for a re-entry visa for them to allow them to travel to and from the State. While all other visas must be applied for from outside of the State, an application for a re-entry visa for a minor can be made from within the State.

Further worth highlighting are the Irish Naturalisation and Immigration Service’s instructions that in light of the delays in securing an appointment to register immigration permission at the Burgh Quay Registration Office, if living in Dublin, and the further two week period it may take to receive one’s IRP card, it is advised that visa required nationals intending to travel to and from the State in the first four months of their stay should apply for a multiple entry visa, which will allow for them to undertake travel in the interim period before their IRP card is issued to them.

For further information on these changes and their implications please see the Irish Naturalisation and Immigration Service website here.

UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.

 

WELCOME CHANGES TO IMMIGRATION PERMISSION FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS


The purpose of the Critical Skills Employment Permit Scheme is to attract highly skilled people to Ireland in key areas where skills shortages have been identified, mainly in the IT Sector. The Irish Naturalisation and Immigration Service (INIS) have recently announced an update on revised immigration arrangements for family members, spouses and partners of the holders of Critical Skills Employment Permits (CSEP).
The previous immigration requirement was that family members, spouses and partners of Critical Skills Employment Permits obtain their own Dependant /Partner/ Spouse Employment Permit from the Department of Business, Enterprise and Innovation (DBEI). Although more favourable conditions applied to the grant of these employment permits, this still amounted to an obstacle to access to the labour market and often delayed or hindered a person’s ability to work in the State.
From 6th March 2019, the INIS will now grant eligible spouses and de facto partners of CSEP holders’ permission to reside in the State on Stamp 1G Conditions, without the need to obtain a work permit from DBEI.
This change will affect the spouses and partners of non- EEA national CSEP holders in terms of their permissions in the State and their access to the labour market. In addition, the Policy change also applies to the partners and spouses of Researchers in the State on Hosting Agreements.
This policy change means that partners and spouses of CSEP holders no longer need to apply for and hold their own employment permit in order to work in the State. They will be eligible to work in the State on the basis of their own Stamp 1G permission.
The new procedure allows spouses or partners of CSEP holders currently resident in the State, to attend the INIS registration office at Burgh Quay. They will be issued a new Irish Residence Permit (IRP) on Stamp 1G. This will allow the registered person to access the labour market without acquiring a work permit.
There are no charges for those that present a valid IRP however if the current IRP is due for renewal, the normal registration of €300 will apply. If you wish to register under this new policy and you live outside of Dublin, you must attend your local Garda Registration Office.
In addition to this change in policy, from April 1st of 2019, INIS have also confirmed that there will be a new pre clearance procedure in place for non- EEA de facto partners and spouses of CSEP holders. Both visa and non-visa required nationals will now be required to seek permission to reside in the State as spouse or partner of a CSEP holder before arriving in the State. This new procedure is intended to reduce processing times and provide clarity with the new Stamp 1G conditions. The INIS have previously indicated their intention to operate such a pre clearance procedure in respect of many other family reunification applications from non-visa required persons. It will be interesting to see if this pre clearance procedure in respect of partners and spouses of CSEP holders is rolled out to other categories of family reunification.
Ultimately this new policy is intended to provide clearer conditions and more accessibility to the labour market for spouses and partners of CSEP holders. While there is now a necessity for non-EEA spouses and partners to go through a pre clearance procedure before entering the State, this has been introduced with the intention of a more streamlined application and registration process overall in respect of CSEP holder’s family members.
This change in policy is to be welcomed, it is our view that any restrictions on a person’s right to work and access the labour market should be removed from the Irish Immigration system. The Reform Stamp 3 campaign should be congratulated for their work in campaigning for this change.
Our office is currently working on many applications for change in immigration permission from Stamp 3 to Stamp 4 to allow our clients the right to work and earn a livelihood.

NEW PRACTICE DIRECTION FOR ASYLUM AND IMMIGRATION CASES IN THE HIGH COURT

A new practice direction on asylum and immigration cases issued by President of the High Court Mr Justice Peter Kelly on the 17th December 2018 has created significant changes in the Asylum and Immigration court, and imposed significant new obligations on both solicitors and applicants.

Practice Direction 81 came into force on the 1st January 2019 and applies only to cases on the Asylum and Immigration list. The obligations imposed by High Court Practice Direction 81 are significant and wide-ranging.

Following the issuance of this practice direction, there is a requirement on all applicants to disclose a substantial amount of information and documentation to the Court regarding their case, including details of all previous immigration applications made by any applicant or their family member in Ireland or any other country and details of any previous or current civil or criminal proceedings. This is the case even when the applicant’s family members are not involved in the Judicial Review proceedings.

 

Under the Practice Direction all adult applicants are required to submit a further affidavit providing the information as requested in the Practice Direction. There is also a requirement that the applicant’s solicitor swear an affidavit in relation to the proceedings.

 

The Practice Direction requires the following to have been completed in respect of every new asylum and immigration case initiated after the 1st January 2019.

  • Provide the Court with all relevant material facts by way of a sworn affidavit
  • Provide a full account of the applicant and relevant family member’s immigration history, to include an account of any applications made to the Department of Justice or any other immigration or protection authority both in Ireland or in any other country – this would include previous visa or immigration applications to any State.
  • Exhibit the full immigration file for all immigration/protection applications of every applicant made both in Ireland and other countries. If such documents are not exhibited, a full explanation as to why they have not been exhibited and provide an outline of what attempts have been made to acquire the documents
  • Draw the Court’s attention to any “significant matter of fact adverse to the applicant’s case”
  • Swear that all previous representations made to the Department of Justice or any other immigration authority have been disclosed, or if not, to explain why not
  • Swear that all previous statements or representations made to the Department of Justice or any other immigration authority for the applicant and family members is the truth in every respect, or if not, particularising the extent to which any such statements or representations are untrue;
  • Swear that all statements in the Statement of Grounds are true in every respect, or if not, particularising the extent to which they are not true;
  • Swear that the applicant is aware that it is an offence of perjury to make a statement in any affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading.
  • Identify the applicant’s religion and confirming that the grounding affidavit has been sworn in a specified manner recognised by that religion
  • Swear that the contents and implications of the averments of verification, all statements in the statement of grounds and the details of all previous claims and representations made by or on behalf of the applicant or any member of his or her family, or any solicitor on behalf of any of them, have been fully explained to the applicant by his or her solicitor, and that the applicant fully understands same
  • Specify the language that the applicant understands and confirming that the applicant fully understands the affidavit and its exhibits in the language in which it is sworn.
  • Exhibit any document in a language other than English with a translated document by official translation company
  • Disclose any criminal offences/convictions/proceedings in Ireland or any other country
  • Disclose if the applicant has issued any legal proceedings in any immigration/criminal/civil matter in Ireland or any other country
  • Swear and file a further affidavit in respect of any new material relevant to the court subsequent to the grounding affidavit
  • Attend the substantive hearing of the case in person if ordinarily resident in the State, and if required to orally confirm the averments of verification set out in the affidavits.
  • Applicants may be required to complete and submit to the court checklists of the requirements in the Practice Direction as may be required by the Judge from time to time

 

Berkeley Solicitors has recently contacted all clients who have current Judicial Review cases active in our office to explain the new requirements imposed by the practice direction. If there are any further developments on the new Practice Direction there will be a further update on the Immigration Blog and clients will be contacted.

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

SPECIAL SCHEME FOR NON-EEA NATIONALS WHO HELD A STUDENT PERMISSION IN THE STATE DURING THE PERIOD 1 JANUARY 2005 TO 31 DECEMBER 2010

The INIS has launched the new scheme for non-EEA nationals who held a student permission in the State during the period 1 January 2005 and 31 December 2010 to apply for permission to remain.This scheme applies to non-EEA persons who commenced their presence in the State lawfully under a student permission with a limited right to work and who maintained that lawful presence for at least two years.

LUXIMON CASE: SUPREME COURT’S JUDGEMENT

Berkeley Solicitors is happy to announce that the Irish Supreme Court has delivered its judgment in the cases of Luximon v Minister for Justice and Equality and Balchand v Minister for Justice and Equality.

These proceedings where both appealed from the Court of Appeal by the Minister for Justice and Equality.

The outcome of this case is one that potentially affects a large number of our clients, and we note that this judgement is a positive judgement for many non-EEA persons resident in Ireland, who came to the State before 2011 as students. We submit that the case has helpfully clarified the Minsiter’s obligations when assessing applications under Section 4(7) of the Immigration Act 2004.

We have previously discussed the Court of Appeal case of Luximon and Amicus Curiae in the Court of Appeal case in other posts on our Immigration Blog.

The History of the cases:

The cases of Luximon and Bachland concerned Mauritian nationals who first came to the State as students,11 years ago. Both applicants went on to have children after a number of years and viewed Ireland as their place of permanent residence. Through work, education and familial and social connections built over a decade these families had become well-established in the State.

In 2011 a new scheme was introduced entitled “O, registered in Ireland before 1st January 2011”. Under this scheme explicit time limits were set regarding the length of time students could remain in the State.

Between 2012 and 2013 both applicants made applications 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 therefore by the non-national concerned.”

Following the refusal of their Section 4(7) application, Danye Luximon and her daughter challenged this decision in the High Court.

The applicants, in their High Court challenge, contended that the statutory discretion under Section 4 of the 2004 Act must be exercised in accordance with the provisions of Section 4 itself, the Constitution, and the European Convention on Human Rights.

The High Court quashed the minister’s decision, holding that the Minister had an obligation to consider family and private life rights when they arose in the context of a Change of Status application and that the Minister failed to comply with the principles of natural and constitutional justice, and basic fairness of procedures by failing to make available the criteria under which she considered such applications. Budd J allowed an appeal by the Respondent on the basis that it was in the public interest.

The applicant family in Bachland was unsuccessful in challenging the refusal of their Section 4(7) application in the High Court, with the High Court finding on this occasion that the applicant’s residence was “precarious” in nature.

Both cases where appealed to the Court of Appeal.

The Court of Appeal found for the applicants in both cases and affirmed the decision in the High Court of Budd J.

The Court of Appeal judgement was appealed to the Supreme Court by the Respondent (The Minister for Justice and Equality).

Supreme Court Judgement

by Mr Justice Mac Menamin, it was held that the Minister for Justice must take account of an individual’s rights to private and family life under Article 8 of the ECHR in assessing applications under section 4(7) of the Immigration Act 2004.

Each case should be assessed on the particular facts of the case at hand. Any decision made without taking the individual’s private life into consideration is “unlawful”.

The Judge disagreed with the finding of the High Court in the Bachland case, that the applicant’s immigration status was “precarious”, stating that this is typically used in jurisprudence to refer to those whose status is “attenuated” or weak.

The Judge on the contrary found that the applicants are “lawful, long-duration residents”.

Notably the judgement goes on to find that even if a person’s position was indeed “precarious” that this would not absolve the Minister of observing their duty of fairness.

The Judge differentiated the facts of these case from cases concerning short-term visitors, those in temporary employment, asylum seekers and those without established links to the state.

The Judge also stressed that this judgement only required the Minister for Justice to give “consideration” to the the right to private life.

Justice Mac Menamin found that the way in which the Minister for Justice had refused the Section 4(7) applications of the applicants to be unlawful.

Justice Mac Menamin stressed in their judgement that the judgement was based entirely on the facts at hand, and that this judgement would not apply to all cases.

Justice Mac Menamin in particular emphasises the fact that the applicants came to the State lawfully and were long term established residents and had at all times renewed or attempted to renew their permission to remain.

Reaction

Reactions to the Supreme Court’s judgement have generally been very positive. We refer to the statement of Ms Jane O’Connell, Legal Officer in MRCI:

“The Court emphasised the need for fairness and transparency in Ireland’s immigration policies. This does not mean regularisation for everyone or even for people who meet certain criteria, but it may at last mean a move towards a more humane immigration system in Ireland. We commend both families involved – it takes great bravery to go up against the State, particularly as a migrant.”

We also note the statement of the Department of Justice and Equality made to TheJournal.ie.

“The Supreme Court judgement in this complex case is only recently to hand. The Department of Justice and Equality will require some time to examine and assess its implications in greater detail in conjunction with the Office of the Attorney General.” 

It remains to be seen how this judgement will affect the large number of persons whose applications under Section 4(7) have been pending, awaiting this judgement.

It appears to us to be a positive and helpful judgement from the Supreme Court and we hope that it will result in the issuance of positive decisions in the near future.

We wish to congratulate the families involved in these important cases and their legal teams.

Once the practical effect of this judgement becomes clear we will update The Immigration Blog.