Tag Archive for: Berkeley Solicitors

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

NEW ACT INTRODUCING SIGNIFICANT CHANGES TO IMMIGRATION AND CITIZENSHIP COMMENCED

The Minister for Justice Helen McEntee has commenced the majority of the provisions of the Courts and Civil Law (Miscellaneous Provisions) Act 2023.
This Act has introduced significant amendments to immigration, citizenship and naturalisation law in Ireland, to take effect from 31st July 2023. The major changes are outlined below:
The Act contains amendments to a number of provisions of the Irish Nationality and Citizenship Acts.
Children born in the State who are not entitled to Irish citizenship by birth, will now be eligible to apply for naturalisation after three years of reckonable residency in the State, reduced from five years……

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RECENT UPDATES TO DOCUMENTARY REQUIREMENTS FOR NATURALISATION APPLICATIONS

The Department of Justice have recently made a number of changes to the documentary requirements for naturalisation applications.

On 21st April 2023, a new notice was published on the Minister’s website confirming that all new applicants for naturalisation are only required to provide a certified colour copy of the biometric page of their current passport. The colour copy of the biometric page can be certified by a Solicitor, Commissioner for Oaths, Peace Commissioner or Notary Public.

This replaces the old system introduced in January 2022 which required applicants to provide a full certified copy of their current passport and any previous passports valid during the period of reckonable residency claimed.

The full notice is available here: https://www.irishimmigration.ie/further-guidance-on-new-passport-process-when-submitting-an-application-for-naturalisation/

The Department also introduced a new Citizenship Guidance Document on 24th May 2023, outlining a number of changes to the scorecard system for proofs of identity and residence.

The Document outlines a new two-part system in which applicants exhibit their residency in Ireland for the periods of reckonable residency claimed.

For each of these years, applicants must provide one Type A document, worth 100 points, and one Type B document, worth 50 points.

Applicants are required to attain 150 points for proofs of identity and proofs of residence.

However, if applicants are unable to meet the 150-point threshold for any of the years, applicants can prepare a ‘residential proof affidavit’ to address the shortfall.

The Citizenship Guidance Document can be accessed here: https://www.irishimmigration.ie/wp-content/uploads/2023/05/Citizenship-Guidance-Document.pdf

Berkeley Solicitors is highly specialised in citizenship applications. Please do contact us if you need advice or assistance in this regard.

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.

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

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.

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

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.

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

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.