Tag Archive for: citizenship

NEW VISA REQUIREMENTS ANNOUNCED FOR NATIONALS OF BOTSWANA AND SOUTH AFRICA

NATURALISATION APPROVAL BASED ON STAMP 2A (SPOUSE OF PHD STUDENT)

Clients of Berkeley Solicitors have recently received a positive decision regarding a naturalisation application for a minor child of a Stamp 2A holder, based on their parent’s residence. It was previously thought that Stamp 2A was not reckonable for naturalisation purposes and this continues to be stated on the ISD website.

The applicant child’s parent was the spouse of a PhD student and held Stamp 2A on that basis.  We argued that the Stamp 2A permission was reckonable for naturalisation purposes pursuant to Section 16A(1) of the Irish Nationality and Citizenship Act 1956 (as amended) as the permission issued to the child’s parent as the spouse of a financially independent student, not for the purpose of engaging in a course of education or study. The application was ultimately successful.

We note that this is an extremely positive development, and we are grateful for the decision issued to our clients.

Please note that this legal argument would not apply to other categories of Stamp 2A holder who are themselves studying in Ireland.

For more information on citizen and naturalisation please see the link below:

https://berkeleysolicitors.ie/citizenship-and-naturalization/

If you or a family member have any queries regarding Stamp 2A and citizenship, please do not hesitate to contact us.

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.

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

The High Court has recently delivered a judgement in T.R.I. (A Minor Suing by his Mother and Next Friend L.B.) v The Minister for Foreign Affairs and the Minister for Justice [2024] IEHC 96.

The case concerned a minor child born in Ireland in September of 2019, whose mother holds a declaration of subsidiary protection status.

Subsidiary protection is granted to individuals facing a real risk of suffering serious harm if returned to their country of origin, or their country of former habitual residence.

In August of 2021, the Applicant’s mother applied for an Irish passport on behalf of her child.

Section 6A(1) of the Irish Nationality and Citizenship Act 1956 states that a person born on the island of Ireland “shall not be entitled” to Irish citizenship unless their parent has, during the four years immediately preceding the birth, a period of reckonable residence of not less than three years.

However, Section 6A(2)(d)(i) qualifies that section 6A(1) does not apply to a child born on the island of Ireland if one parent is entitled to reside in the State “without any restriction” on their residence.

As the mother is a subsidiary protection holder, it was argued that she fell within this subsection of persons who are entitled to reside in the State without any restriction on their period of residence. This would mean the child was entitled to Irish citizenship by birth, even though the mother had less than three years’ reckonable residence in the four years immediately prior to the child’s birth.

This application was refused on the 15th of November 2022, on the basis that Section 6A (2)(d)(i) of the 1956 Act does not apply to a person with subsidiary protection.

The Applicant, through his mother, challenged this decision by way of Judicial Review proceedings in the High Court. It was argued that the mother is entitled to reside in the State without restriction, as the relevant law states that her permission “shall” be renewable, and it is not in any way restricted by time.

The Applicants relied on the Court of Appeal decision in AJK v The Minister for Defence [2020] 2 IR 800, where the Court found that subsidiary protection was “in effect an open-ended right of residence.”

Ms Justice Bolger considered the decision in AJK and stated that she did not consider it established an open-ended right of residence for a person with subsidiary protection. She stated that the comments of Donnelly J must be read in context of the entire judgement and highlighted that the case did not concern citizenship.

Ms Justice Bolger stated that although the law states that the subsidiary protection permission “shall be renewable”, its renewal is in fact conditional; firstly on the continuation of the circumstances that justified the grant of subsidiary protection in the first place, and secondly on there being no compelling reasons of national security or public order.

The Judge stated:

“The mother’s right to renew her permission to reside in the State via her grant of subsidiary protection… is and always was for a temporally restricted permission of a period less than three years subject to conditions.”

Ms Justice Bolger therefore upheld the decision of the Respondent to refuse the child’s application for an Irish passport.

The full judgement can be found here.

If you or a family member have any queries regarding Citizenship, please do not hesitate to contact us.

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……

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.

NEW VISA REQUIREMENTS ANNOUNCED FOR NATIONALS OF BOTSWANA AND SOUTH AFRICA

IMMIGRATION IN IRELAND STATISTICS MID-TERM REVIEW

 

The Department of Justice has provided up to date statistics from January 2022 to June 2022 in relation to, Residency and EU Treaty Rights, Visa, Citizenship statistics, International protection, and Removal/Deportation. The statistics were broken down by nationality, gender, and age group.

In relation to EU Treaty Rights Applications from January to June 2022, the data shows that nationals from Brazil, South Africa, and Pakistan were the top nationalities of applications received by the Department of Justice. 1356 applications were received from Brazil, 240 from Pakistan, and 153 from South Africa.

The statistics found that nationals from India, Egypt, and China were the top nationalities for Long Term Residency Applications. 30 applications for Indian nationals, 26 applications for Egyptian nationals, and 25 for Chinese nationals (including Hong Kong).

The total visas decided from January to June 2022 were primarily from India, Nigeria, and Turkey. With 21535 visas from Indian nationals, 3396 visas from Nigerian nationals, and 3019 visas from Turkish nationals. In total, most of the visas granted were for Indian (20736 visas), Turkish (2812 visas), and Chinese nationals (2477 visas). The most refused visas were for nationals from Nigeria (1568), India (799), and Pakistan (541), with an overall number of 5825 visas refused. The total decided re-entry visas from January to June 2022 were from Indian, Pakistani and Egyptian nationals.

From January to June 2022, there were 7039 citizenship certificates issued, mainly in respect of United Kingdom, Indian, and Pakistani nationals.

In total, there were 6495 applications received relating to International Protection Applications for 2022. Mainly from Georgia (1811), Somalia (938), and Algeria (698). Out of those applications, there were 1037 applications that have been approved, primarily from Somalia, Afghanistan, and Zimbabwe. Moreover, 1657 applications were refused primarily from Nigeria (216), Georgia (216), Zimbabwe (204).

In relation to Family Reunification Applications, there were 1137 applications submitted from January to June 2022, mainly from nationals of Somalia (489), Afghanistan (247), and Syria (69). 1911 applications for access to the labour market were submitted from January to June 2022, mainly from Somalia, Georgia, and Nigeria nationals.

There were 23 total removals effected, primarily from Romania, Lithuania, and Poland nationals. 54 deportations effected primarily from Pakistan, Nigeria, and Georgia nationals.

The book for the full statistics can be found here: https://www.irishimmigration.ie/wp-content/uploads/2023/01/Mid-Year-Review-Statistics-Booklet-2022.pdf

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 VISA REQUIREMENTS ANNOUNCED FOR NATIONALS OF BOTSWANA AND SOUTH AFRICA

UPCOMING CITIZENSHIP CEREMONIES

The Department of Justice has announced that the next citizenship ceremonies will take place on Monday the 19th and Tuesday the 20th of June 2023. The ceremonies are being hosted at the Killarney Convention Centre in Killarney, Co. Kerry.

Invitations will issue in due course to eligible candidates. Candidates are required to produce identity documents, for example a valid passport, on the day of the ceremony for verification purposes. At the ceremony candidates take an oath of fidelity to the nation, receive their certificate of naturalisation and become Irish citizens.

Berkeley Solicitors wishes to congratulate our clients who have recently been approved their applications for a Certificate of Naturalisation, and all who will be attending these ceremonies.

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

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.

PROCESSING TIMES FOR FOREIGN BIRTH REGISTRATION

UPCOMING CITIZENSHIP CEREMONIES

The Department of Justice has announced that the next citizenship ceremonies will take place on Monday the 5th of December and Tuesday the 6th of December 2022. The ceremonies are being hosted at the Killarney Convention Centre in Killarney, Co. Kerry.

Invitations will issue in due course to eligible candidates. Candidates are required to produce identity documents, for example a valid passport, on the day of the ceremony for verification purposes. At the ceremony candidates take an oath of fidelity to the nation, receive their certificate of naturalisation and become Irish citizens.

Berkeley Solicitors wishes to congratulate our clients who have recently received their Irish Citizenship, and all who will be attending these ceremonies.

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

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.

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

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.