Tag Archive for: Berkeley Solicitors

RUSSIAN AND BELARUSIAN CITIZENS REMOVED FROM IRISH SHORT STAY VISA WAIVER SCHEME

SUBMISSION OF ORIGINAL DOCUMENTS WITH VISA APPLICATIONS

Berkeley Solicitors has been informed from a number of clients that are submitting visa applications via VFS centres that their original documents are not being retained for the processing of their applications.

We have recently received confirmation that VFS staff act on behalf of the Department of Justice in accessing original documents for the purposes of visa applications.

We are advised that staff at the VFS centres assess the Applicant’s original documents for the required attestations and then scan these documents.

We have been advised that the original documents are then handed back to the Applicants and are not passed on to ISD officials for the processing of such applications.

We have been informed that this practice is currently being enacted on a phased bases across Irish visa offices globally.

This is a point of great concern as we understand the ISD requirements require submission of original documents in support of visa applications.

We have always advised our clients that original, attested documents are extremely important for a visa application, and it therefore causes much concern when they are not accepted for the processing of an application.

We request that the policy in respect of providing original documents for visa applications is published on the ISD website so that Applicants are aware of the current procedure.

BERKELEY SOLICITORS VOTED ONE OF IRELAND’S BEST LAW FIRMS 2023

The Irish Independent published the list of Ireland’s Best Law Firms 2023 on the 2nd October 2022. The list was compiled following a peer-to-peer survey of more than 1,000 legal professionals.

Berkeley Solicitors are delighted to have been voted one the best law firms in Ireland for 2023. This is the second year in a row Berkeley Solicitors have been included in the list, in the category of Human Rights and Immigration.

Berkeley Solicitors would like to express our gratitude for our clients’ and colleagues’ continued support. We look forward to working with you and continuing our relationships into 2023.

The full list of Ireland’s Best Law Firms 2023 can be found here.

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE EUROPEAN COURT OF JUSTICE IN SUBHAN AND ALI

On the 15th of September 2022, the Court of Justice of the European Union delivered a seminal judgement in the area of EU free movement law, finding in favour of the applicants in the case of C-22/21  (Subhan and Ali v the Minister for Justice and Equality.)

The judgment can be found here.

The applicants, who are long standing clients of Berkeley Solicitors, first issued proceedings in 2016 to challenge the Minister’s refusal of an EU residence card to the non-EEA national cousin of a British citizen in 2015. The Minster had refused the residence card application on the basis that evidence had not been provided that the EU citizen was the “head of the household”. The Subhan and Ali case became the test case for many other applicants also challenging the Minister’s decisions relating to the interpretation of term “members of the household of the union citizen” in the context of Directive 2004/38/EC.

On the 14th January 2021, the Irish Supreme Court made a preliminary reference to the CJEU to seeking a definition of the term “member of the household of an EU citizen”.

The Court of Justice’s judgment delivered today confirmed that the inclusion of the concept of “head of the household”, adopted by Ireland in its narrow assessment of the definition “members of the household”, amounts to an additional criterion not provided for in the wording of Article 3(2)(a) of Directive 2004/38/EC and is not permissible. The Minister’s finding in the Applicants’ case was therefore unlawful and imposed an additional test not envisaged by the Directive and would amount to imposing, in practice, an additional criterion not provided for in the wording of that provision. The decision therefore clearly holds the “head of the household test” applied by the Minister against the applicants was not in accordance with the EU Directive.

This ruling goes much further than declaring the legality of the Applicants decision under challenge,  as the Court of Justice has also provided a novel definition of the term “membership of the household” applicable to all member states.

The Court of Justice held that Article 3(2)(a) of Directive 2004/38/EC must be interpreted as meaning that:

“the concept of ‘any other family members who are members of the household of the Union citizen having the primary right of residence’, mentioned in that provision, refers to persons who have a relationship of dependence with that citizen, based on close and stable personal ties, forged within the same household, in the context of a shared domestic life going beyond a mere temporary cohabitation entered into for reasons of pure convenience.”

The judgment has therefore provided the much needed clarification on the parameters of which  family members of an EU citizen are or are not the “members of a household of an EU citizen”.

The Court’s definition, in requiring a “relationship of dependence” is a narrower interpretation than the ordinary meaning of the words “member of the household”.  The Court has also clarified that a person is not a “member of the household” for the purposes of the Directive by simple virtue of residing under the one roof.

The Court has determined that this interpretation is supported by the “context of the provision”, which is included alongside dependent family members and members of the family requiring the strict personal care of the EU citizen for medical reasons:

The first situation, in which those other family members are dependents of the Union citizen, concerns a situation of financial dependence. The second situation, in which serious health grounds strictly require the personal care of the ‘other family member’ by the Union citizen, expressly refers to a situation of physical dependence. In that context, the situation at issue in the main proceedings – in which the other family member is a member of the household of the Union citizen – must be understood as also covering a situation of dependence, based this time on the existence of close and stable personal ties between those two persons.

An applicant must therefore be able to evidence a situation of dependence arising from close and stable personal ties between themselves and the EU citizen with whom they share a “domestic life”.

The Court goes on to clarify: However, it cannot be required that those ties be such that the Union citizen would refrain from exercising his freedom of movement if that other member of his family could not accompany or join him in the host Member State.

The Court also appears to answer another important question that was not specifically referred to it in confirming that time spent as members of the same household before acquisition of EU citizenship by one of the family members is also relevant in considering whether the applicant is a member of the household of the EU citizen. This is a very interesting aspect to the judgment as it clarifies that family circumstances prior to one of the parties becoming an EU citizen can be taken into account in determining whether an applicant is a beneficiary of the Directive. At paragraph 29 the Court concludes :

The duration of the domestic life shared by the Union citizen and the other family member concerned is also an important factor to be taken into consideration in assessing whether there are stable personal ties between them. It must be possible to determine that duration irrespective of the date on which Union citizenship was acquired. It follows from point (a) of the first subparagraph of Article 3(2) of Directive 2004/38, interpreted in the light of recital 6 thereof, that, in order to assess the stability of the personal ties linking those two individuals, it is necessary to take into account not only the period subsequent to the acquisition of Union citizenship, but also the period prior to this.

This is a very important and long-awaited judgment, and it has set a significant precedent for EU free movement law.

The definition provided by the Court is clear and has provided EU member states with substantial clarity on the meaning of “member of the household”. Until now, the parameters around membership of the same household were very unclear, with applicants arguing for a wide interpretation and the State applying a very narrow interpretation.

This new legal definition provides a basis for a reasonable and balanced approach by Member States in the assessment of the free movement rights of EU citizens and their wider family members.

This Judgment will have far reaching implications beyond the applicants in the proceedings and the High Court holding list, but also all those who have applied for EU residence cards not only Ireland, but across the EU, on the basis of being the member of the household of an EU national.

We wish to extend our warmest congratulations to our clients who have waited many years for this ruling today.

The judgement can be read in full here.

RUSSIAN AND BELARUSIAN CITIZENS REMOVED FROM IRISH SHORT STAY VISA WAIVER SCHEME

EXTENSION OF 5-YEAR MULTI-ENTRY SHORT-STAY VISA OPTION TO ALL VISA REQUIRED COUNTRIES

On April 22nd 2022, the Minister for Justice, Helen McEntee TD, announced the extension of the 5-year, multi entry, short-stay visa option to all visa required countries. A multi entry visa permits the visa holder to travel to Ireland on a number of occasions during the dates shown on the visa.

Prior to this, Ireland had offered 1 year, 2 year and 3-year multi entry visas. The option of a 5-year multi-entry visa was only available to Chinese passport holders; a measure which was introduced on the 1st of July 2019.

In her announcement of the change, Minister McEntee stated:

“The availability of 5-year multi entry short stay visas to eligible applicants from all visa required countries is a very positive measure. It will enable people who visit Ireland regularly, for business or family reasons in particular, to make one application, which when granted, will then cover travel over a five-year period.

This will make travelling to Ireland a more convenient and attractive option at a time when travelling worldwide is resuming and our tourism industry, in particular, is reopening following the impact of the COVID-19 pandemic.”

Previously, multi entry visas were only issued to applicants who have shown a compliant Irish travel history in the recent past. In line with the changes announced by Minister McEntee, people who have travelled frequently to the United Kingdom, the Schengen Zone, USA, Canada, Australia, or New Zealand, and have observed the conditions of such visas, will now be able to apply for the option of a multi-year visa for 1-5 years, even if they have no previous travel history to Ireland.

For a person with no Irish travel history, a multi entry visa may be approved where the person:

  1. Needs to travel regularly to Ireland on short visits for business meetings
  2. While in Ireland on business, needs to travel to another country and return to Ireland for further meetings or onward travel, or
  3. Is travelling to and from another country via Ireland.

The option of a standard, single-entry visa also remains available.

The current visa fees are as follows:

Single entry short Stay ‘C’ visa: €60

Multiple entry short stay ‘C’ visa: €100

The granting of a multi-entry visa, as with all visa applications, is ultimately at the discretion of the relevant Visa Officer.

EXCLUSION OF UKRAINIAN CITIZENS AND HOLDERS OF TEMPORARY PROTECTION FROM REGISTER OF NON-NATIONALS

It has now been five months since the Council Implementing Decision (EU) 2022/382 of the 4th March 2022 and since the Department of Justice commenced granting Temporary Protection for persons fleeing the conflict in Ukraine in accordance with Section 60 of International Protection Act of 2015.

Currently, the Minister still has yet to open the Register of Non Nationals to Ukrainians and holders of temporary protection.

With the exception of one client of Berkeley Solicitors who was successfully registered on stamp 4 permission on the basis that they urgently needed to leave the State, we are not aware of any other holders of temporary protection who have been registered.

In lieu of registering the immigration permissions of the relevant parties, the Minister granted such persons letters confirming their temporary protection along with a right to work, PPS number and other supports.

In response to a Parliamentary Question dated 8th May 2022, Minister McEntee stated

As of 8 May 2022, a total of 28,531 people had arrived in Ireland from Ukraine and my Department had issued approximately 28,002 temporary protection permission letters.
In relation to the registration of their immigration permission, people who have arrived from Ukraine will have been given a 90 day immigration permission, as standard on arrival, by an immigration officer. Arrangements for the registration of the permission and the issuance of an Irish Residence Permit (IRP) card will be finalised by my Department as soon as possible. All necessary steps will be taken to ensure that the process is as simple and stress-free as possible. The practical arrangements will be communicated at the appropriate time.

According to the FAQ page of Department of Justice website updated on the 8th June 2022, the Minister is taking steps to register the immigration permissions of Ukrainians and holders of temporary protection:

“The Department of Justice is putting in place the arrangements for the registration of the permission and information will be provided to you at the appropriate time. The department is taking all necessary steps to ensure that the registration process will be as simple and stress-free as possible for you.”

While we welcome the provision of residence permission and other rights to persons who have fled Ukraine, the failure of the Irish authorities to register holders of temporary protection and to provide them with IRP cards is not satisfactory. It garners a number of negative consequences specifically pertaining to visa required nationals who hold temporary protection and are unable to leave the State as they cannot obtain a re entry visa.

We submit that Minister for Justice is required to facilitate the registration of all non nationals in Ireland who have been issued with permission to reside pursuant to Section 9 of the Immigration Act 2004, and this includes the holders of temporary protection.  Section 9 also places an obligation on all non nationals with permission to reside to register.

It is our position that the Minister of Justice is currently failing in her duties to Ukrainians and holders of temporary protection in not facilitating them to register.

JUDGMENT ON FAMILY REUNIFICATION OF ADOPTED CHILDREN UNDER SECTION 56

On 22nd July 2022, Ms. Justice Donnelly of the Civil Court of Appeal delivered judgment in the case of H.A. v. The Minister for Justice. The Minister for Justice appealed to the Court of Appeal following the Judgment in favour of the applicant in the High Court.

H.A. is a national of Somalia who was granted refugee status in the State by the Minister on 9th July 2019. On 11th June 2020, H.A. submitted a request for her husband, niece and nephew to join her in the State on the ground of family reunification under section 56 of the International Protection Act. H.A.’s request was granted for her husband and rejected for her niece and nephew.

H.A.’s niece and nephew, ‘X’ and ‘Y’, are cousins. X and Y are orphans after both children’s parents died during fighting in Somalia. On 11th November 2019 a Somali court issued H.A. a “Declaration of Responsibility” in respect of X and Y, making H.A. the legal guardian of the children. When H.A. applied for family reunification, she classified X and Y as her ‘non-biological children’ and included the Declaration of Responsibility among the supplemental documents.

H.A.’s letter of request also referenced the then-recent judgment in X v. Minister for Justice and Equality (2019), in which Mr. Justice Barrett J. held that there is a “wide diversity of family structures” and that the definition of a “child” can extend beyond that of biological and adopted. In a judgment delivered on 7th June 2020, two days before H.A. submitted her application for family reunification, the Supreme Court overturned Mr. Justice Barrett’s judgment, holding that the definition of a child, for the purposes of section 56 of the International Protection Act 2015, is confined to a biological or adopted child only.

H.A. applied for judicial review on the decision, stating that she believed the Declaration of Responsibility was not adequately considered and for failure to provide reasons for the decision. H.A. argued that a “refugee-sensitive” approach to the concept of adoption should be taken in this case, considering the family’s situation and the differences in the interpretation of adoption across different cultures.

Mr. Justice Ferriter J. of the High Court agreed that the Declaration of Responsibility was a vital part of H.A.’s application for family reunification. He held that the decision-maker had erred by not referencing or engaging with the Declaration of Responsibility.” Mr. Justice Ferriter declined to rule on whether X and Y would fall under the restricted definition of “child” according to section 56 of the International Protection Act (2015) and conceded that H.A. may have difficulty proving that X and Y are her children according to this limited definition. Mr. Justice Ferriter further stated that H.A. should be given the opportunity to make that argument.

The Minister submitted that because Somalia is not a Hague Convention country, there is no bilateral agreement even if the Declaration of Responsibility translates to adoption in Somali culture. H.A. submitted that the key issue was rather the law of the country of origin, because “the Declaration of Responsibility is equivalent in large part to a foreign adoption although it could never be recognized as such under the Hague Convention.”

Ms. Justice Donnelly’s ultimate findings are that the High Court was correct in finding that the Declaration of Responsibility was not properly considered by the Minister and the Declaration was vital to determining whether X and Y are non-biological children of the respondent.

Ms. Justice Donnelly further found that the Minister’s assertion that the trial judge incorrectly granted certiorari on the grounds that H.A.’s case was “bound to fail” must be rejected.

Ms. Justice Donnelly states that “the respondent’s case has reached the level of arguability that is required before a court should decline the invitation to refuse to grant certiorari on the ground that the subsequent remittal would be a futile exercise.”

We submit that the Supreme Court decision in the X case has clarified that a “child” within the meaning of Section 56 is limited to biological and adopted children and this position was followed by the Court of Appeal in this case.

However, we submit that the precise meaning of an “adopted child” is a matter which is still to be tested before the Courts, the Court in this case noted:

.An important consideration is that while X v. Minister for Justice and Equality held that the child of a sponsor meant solely the biological or the adopted child of the sponsor, the Supreme Court was not asked to, and did not consider, the precise meaning of “[a]dopted child” as set out in s. 18(d) of the Interpretation Act. That point did not arise in X and, as is frequently said, a point not raised is a point not decided.

EXCLUSION OF NON-EEA FISHERMEN FROM THE LONG-TERM RESIDENCE SCHEME

The Atypical Worker Permission Scheme for non-EEA fishers states the non-EEA migrants need an Irish work permit, visa or immigration permission to work on a fishing vessel that operates in or passes through Ireland’s territorial water or docks at an Irish port.

To qualify for the scheme, a non-EEA fisherman must be directly employed by the holder of a sea-fishing boat license in Ireland for at least 12 months. To switch to a different sea-fishing employer, non-EEA fishermen must complete an online application form. This form takes at least 20 days to process with no guarantee of approval. A Government Task Force appointed to investigate the Atypical Working Scheme for non-EEA crew noted that the procedures in place for changing one’s employer on their fishing permit are not reliable in practice.

Prospective workers admitted to the Atypical Worker Scheme for non-EEA crew in the Irish fishing fleet are unable to seek work in Ireland in a different industry, regardless of how long they have been working in the State. Limited supervision of the fishing industry leaves workers, especially non-EEA and migrant fishers, vulnerable to unfair and dangerous working conditions.

It is our belief that persons who are working in Ireland in the fishing industry on the basis of the atypical permissions scheme are being treated less favourably and are suffering disproportionate prejudice by being restricted to their employers indefinitely.

We note that the holders of Critical Skills Employment Permit holders receive stamp 4 permission after two years employment and holders of General Employment Permits receive Stamp 4 after 5 years of employment.

We note that persons eligible for regularization under the Minister’s Scheme for Undocumented people will receive Stamp 4 permission and free access to the labour market.

Meanwhile, it appears that there is no pathway for persons resident in Ireland as fishermen under the  a atypical scheme to move on to Stamp 4 permission after several years of legal residence and employment in the State.

There is no rationale as to why fishermen resident as atypical workers do not receive the same employment and residence opportunities. We see no lawful reason to restrict non-EEA fishers from progressing their careers in the State. We submit it is dangerous and unhelpful that the residency of non-EEA fishermen in Ireland rests completely on their continued employment with one employer only.

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

On 27th June 2022, Mr Justice Ferriter of the High Court gave judgment in the judicial review cases of SH and AJ. Both cases address the application of s.56 of the International Protection Act 2015.

S.56(a)(d) of the International Protection Act 2015 states that the child of an applicant for family reunification must be under 18 years of age and unmarried at the time of application for family reunification.

A basic understanding of the cases of SH and AJ is necessary to understand the High Court ruling.

SH is a national of Syria. His wife and their three children, NH (born 31st May 2009), AH (born 24th April 2003) and ZH (born 29th April 2000) remain in Syria.

SH experienced significant delays in the processing of his application for international protection as the Minister reported that the department was experiencing delays due to the onset of Covid-19. Because of these delays, SH did not receive an IPO interview until the 14th May 2021.

SH was informed by letter of a declaration of his refugee status on 1st June 2021. SH’s son, AH, turned 18 on 24th April 2021.

On 7th July 2021, SH made an application for family reunification based on s.56 for his wife and three children. On 9th July 2021, the Minister denied SH’s application for family reunification because AH and ZH were aged 18 years and 21 years, respectively, at the time of application.

On 14th October 2021, SH applied under the Minister’s administrative Join Family policy document for long stay visas for AH and ZH. The application has not yet been determined.
AJ is a national of Somalia who fled the country to avoid persecution by Al Shabab, a terrorist group. AJ arrived in the State on the 8th August 2019 and applied for international protection the same day. AJ’s wife and three children remain in Somalia. AJ’s oldest son, MJ, was born on the 2nd January 2003. AJ’s twins were born on the 8th October 2005.
AJ was formally granted refugee status on the 11th November 2020. AJ’s son, MJ, turned 18 on 2nd January 2021.

On 29th January 2021, AJ applied for family reunification under s.56 for his wife and three children. The application was denied the same day on that basis that MJ was over 18 years of age on the date of application.

AJ requested a review of this decision; the original decision was upheld.

AJ then made an application for MJ under the Minister’s administrative Join Family policy document for a long stay visa. This application was refused on the 6th May 2021. AJ sought review of this decision. The review is currently pending.

Both SH and AJ hold that the delay in processing their applications led to a situation where their children aged out of eligibility for family reunification pursuant to Section 56.
The applicants further argued that the relevant date for reviewing the entitlement to family reunification is the date that the applicant applied for international protection, holding that family reunification is a right guaranteed by EU law.

Justice Ferriter held in this regard that Section 56 is a matter of policy choice by the legislature- “it follows that Section 56(9)(d) is not in breach of EU law.”
Applicant AJ also argued his entitlement for Francovich damages. The Court held that there was a breach of Article 22 of the Qualification Directive in respect of AJ’s case.

Mr Justice Ferriter concedes that both applicants likely would have been granted family reunification for all family members if not for the delays in processing their international protection applications, though the department does not bare legal fault for the lengthy processing of the applications.

Mr Justice Ferriter states that, in his view, there is no EU law right to family reunification in Ireland from the date of a refugee’s application of international protection.

Judge Ferriter referred to and relied on the Supreme Judgment of ASSI in his judgment, in which the constitutionality of Section 56(8) and Section 56(9)(a) of the 2015 were upheld.

Ultimately, Mr Justice Ferriter refused SH’s application for relief and adjourned for further review AJ’s claim for Francovich damages, stating that ‘it is difficult to form any view on the damages said to arise in circumstance where a review decision is still pending in respect of AJ’s scheme application’.

The Court held that the Court, nor the Minister was entitled to disapply a statutory provision that the applicants did not meet. The Court found that it could not re write the contents of Section 56(9)(d) and that to do so would amount to an improper usurpation of the Courts constitutional role.

The Court found that in absence of a free standing right to family reunification, the Legislature is entitled to put parameters on the rights to family reunification for the beneficiaries of international protection.

In relation to the Minister’s Policy Document on Non-EEA Family reunification, the Court commented that it is preferrable that guidelines do exist in respect of the operation of the Minister’s discretion in this area. The Court also commented that in it’s view there may be occasions, of cases of such a humanitarian nature, that to expect an applicant to wait 12 months for a decision would not be proportionate.

We submit that the provisions of Section 56 are too restrictive in nature and are causing devastation for families of refuges. We submit that the parameters of those provisions is a matter that should be revisited by the Legislature.

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

SIGNIFICANT SUPREME COURT DECISION- REFUSAL TO ISSUE IRISH PASSPORT TO MINOR CHILD BORN IN IRELAND

The Supreme Court have delivered a very significant judgement in the case of U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors.

U.M is a minor child, born in Ireland on 1st June 2013. UM’s father is a citizen of Afghanistan, who was granted a declaration of refugee status on 14th July 2006, having arrived in Ireland on 22nd April 2005.

UM’s father in 2012 returned to Afghanistan and returned to the State at a time when his Stamp 4 registration had lapsed. His fingerprints were taken at Dublin airport and were found to match with the identity of another person, who had been refused refugee status in the United Kingdom in 2004.

UM’s father subsequently received a decision from the Minister for Justice revoking his refugee status, on the basis that he had returned to Afghanistan and had not given truthful information in his asylum application. UM’s refugee status was revoked pursuant to the Minister’s powers under the now repealed Section 21(1) of the Refugee Act 1996. Under the International Protection Act 2015 revocation of refugee status must take place where various circumstances arise, the Minister no longer has a discretion as she did have under the 1996 Act. The 2015 Act also confirms the revocation will have prospective effect. UM’s father’s refugee status was revoked with effect from 31st August 2013. UM’s father did not appeal the Minister’s decision.

An Irish passport application was submitted for UM in 2014, a decision was made to refuse this application on 11th June 2014 and a request for a review of this decision, affirmed the initial decision by decision dated 17th November 2014.

This decision was challenged by way of Judicial review proceedings and a declaration was sought from the Courts that UM is an Irish citizen.

Section 12 of the Passport Act 2008 outlines that the Minister shall refuse to issue an Irish passport if the Minister is not satisfied that person is an Irish citizen.

Entitlement to Irish citizenship is in turn governed by the Irish Nationality and Citizenship Act1956 (as amended).

Section 6A of this Act outlines that children born in Ireland to parents who are not Irish or British citizens will be entitled to Irish citizenship at birth only if one or either of their parents have at least three years reckonable residence in the island of Ireland in the four year period prior to their birth. Residence in the State for the purpose of study, for the purpose of seeking asylum or residence that is in breach of Section 5(1) of the Immigration Act 2004 (As amended) is not reckonable for this calculation. By default, all other permissions are reckonable.

Within Section 5(1) of the 2004 Act there are specific types of permission which are excluded from the remit of Section 5, including those persons who have a refugee declaration in place.

UM’s case was lost in the High Court. The Minister for Justice argued that for permission to be reckonable for the purpose of Section 6A, it must be lawful and bona fides residence and not obtained by fraud. The applicant argued that the specific residence permissions excluded from reckonable residence are only those specifically excluded under Section 6B. The Applicant argued that his father’s refugee status was revoked from the date of the decision, and this was in fact stated on the decision and was not void from the outset. The Court acknowledged that there had been no wrongdoing on the part of the applicant, a minor child, but did not grant UM the relief of quashing the refusal decision, nor was the court prepared to make a declaration that UM was an Irish citizen.

The case was appealed to the Court of appeal, who issued their decision on 11th June 2020 The Court of Appeal held that there was a key question in the case- is permission obtained fraudulently reckonable or non-reckonable for the purposes of the 1956 Act? The Court found that it was not permissible for the Minister to add in a requirement not found in the legalisation – that for permission to be reckonable it must be lawful and bona fides. For residence not to be reckonable, it must be specifically excluded in the Act. Therefore the Court of Appeal went on to assess whether UM’s father’s permission within the relevant period was in breach of Section 5(1) of the Immigration Act 2004. The Court of Appeal found that the permission of UM’s father during this period was in breach of Section 5(1)- the Court of Appeal found that the Court must look behind the permission held, to the deceit upon which it was grounded.

UM appealed his case to the Supreme Court. The Supreme Court found that the key question is whether UM’s father’s refugee declaration was “in force” for the relevant period.

UM argued that the revocation of his father’s refugee status had prospective effect, from 31st August 2013, as was stated on the decision itself. UM highlighted that the power to revoke refugee status under Section 21(1) of the Refugee Act 1996 was a discretionary power and the Minister had a discretion as to whether to proceed to revoke MM’s refugee status or not in spite of any potential grounds for revocation. The Minister argued that in the same way a declaration of refugee status has a date, the declaration does not confer the refugee status, only recognises its existence, therefore the revocation decision recognises the refugee status never existed in the first place. The Court of Appeal held that “fraud unravels everything”.

The Irish Human Rights and Equality Commission acted as amicus curiae in the Supreme Court proceedings. They argued that any system resulting in nullification of citizenship should include procedural safeguards and an assessment of the impact of such an action of impacted parties. UM also argued that the Minister was required to carry out a proportionately assessment in relation to the decision that would ultimately result in UM’s loss of citizenship. UM further argued that even if the decision of the Minister to revoke MM’s refugee status was retrospective, this did not make his residence in the relevant period in breach of Section 5(1), as the refugee declaration and the permission (Stamp 4) are separate and distinct from one another.

The Supreme Court agreed with the Court of Appeal, that it was not permissible to add a requirement that residence be lawful and bona fides for it to be reckonable.

In examining whether a decision to revoke refugee status renders the declaration void from the outset, the Supreme Court examined various scenarios and held it is difficult to reach a definitive answer and in fact it would depend on the facts leading to revocation and the timing of those events. The Court found that the Minister has a discretion to revoke and does not have to revoke, would therefore result in a conclusion that in most cases the revocation would be from the date of revocation and not from the date the events occurred.

The Court looks at various scenarios and highlights the difficulty in establishing the legal position for persons who obtain derivative rights through the permissions of others, which were fraudulently obtained. The Court highlights difficulty that flows from situations where there was a finding of nullity resulting in a deprivation of citizenship of those claiming a derivative right to citizenship.

In allowing UM’s appeal The Supreme Court concludes:

To all intents and purposes, the declaration of refugee status was valid and effective for all purposes while it remained unrevoked. If the Minister had decided
not to revoke, as it appears could have been the case having regard to the discretion given to the Minister in s. 21 (1), then, that would have meant that the declaration would have remained in force notwithstanding the circumstances in which it was obtained.
Given the status of the declaration until such time as it was revoked I find it difficult to conclude that in holding the declaration was void
ab initio, as was found by the Court of Appeal. It was valid, binding and of effect until revoked

The Court highlighted the difficult position that arises for persons, particularly children, who derive a right from the existence of a right of their parents and are then a risk of losing that right due to cancellation/ revocation of their parents’ right. The Court commented that even if a permission is void ab initio, as was found not to be the case in this instance, there are further questions as to the rights of those who hold derivate rights.

It may well be that the declaration is void ab initio, but there may be a limit to the consequences of such a conclusion. The Court further notes that …invalidity is a relative and not an absolute concept

This is an extremely important decision and as the Supreme Court itself has recognised –“The acquisition or loss of citizenship is a matter of profound significance for the individual concerned”.

Berkeley Solicitors is of the view that this judgement is likely to have a far reaching impact in relation to decisions made to cancel Irish passports for Irish children, following revocation of their parent or parents’ EU fam residence cards.

RECOMMENCEMENT OF CITIZENSHIP CEREMONIES

The first citizenship ceremony since early 2020 was recently held on the 20th June 2022 in Killarney, County Kerry.

The in-person ceremonies were postponed for over two years due to Covid-19 restrictions.

The ceremonies were temporarily replaced with the signing of a declaration of fidelity to the State.

Berkeley Solicitors wishes to congratulate all those who have recently received their Irish Citizenship and we welcome the return of the citizenship ceremonies which allows the recipients to celebrate this occasion.

If you or a family member has any queries regarding your immigration status please do not hesitate to contact us.