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THE IRISH TIMES REPORTS ON THE SUPREME COURT REFERENCE TO THE COURT OF JUSTICE OF THE EU

In an article of the 21st December 2020, the Irish Times reported on an important decision of the Supreme Court in the Subhan and Ali case, in which our office is acting as the solicitors for the appellants.

The Supreme Court delivered judgement on the 21st December 2020, and determined a reference to the Court of Justice of the EU was required in order to seek clarification on the meaning of the term “member of the household of an EU citizen” in the context of EU free movement law.

The Irish Times reported;

The Supreme Court is to ask the Court of Justice of the EU (CJEU) to decide important issues concerning who is a permitted member of a “household” of an EU citizen for the purpose of exercising free movement rights….

…..The five-judge Supreme Court agreed to hear a further appeal after the Court of Appeal dismissed their challenge. The appeal centred on the meaning of what it is to be a member of an EU citizen’s household as a matter of Irish and EU law and on the definition of a “permitted family member” for the purpose of the relevant free movement directive and regulations.

 

Giving the court’s judgment on Monday, Mr Justice Peter Charleton said the determination of that issue required the court to make a reference to the CJEU.

 

The Supreme Court reference to the Court of Justice is significant not just for Ireland, but for all the countries within the territory of the EU. We hope the Court of Justice will take this opportunity to bring clarity to this area of law, thus assisting many other EU citizens in their applications for family reunification.

 

We will post further updates regarding the reference to the Court of Justice in due course.

 

The Irish Times article can be read here;

 

https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-asks-eu-court-to-decide-issues-affecting-free-movement-rights-1.4443061

 

Further information regarding the Subhan and Ali case can be read in our previous articles here;

 

https://berkeleysolicitors.ie/supreme-court-to-make-a-reference-to-the-cjeu-in-subhan-and-ali-test-case/

 

 

Berkeley Solicitors

NEW IMMIGRATION SCHEME FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS FOLLOWING END OF BREXIT TRANSITIONAL PERIOD

On 23rd December 2020 the ISD published the Minister’s new scheme in relation to Non-EEA Family Members of UK Citizens intending to reside in the State from 1st January 2021 onwards.

The rights of British citizens to reside in Ireland remains unchanged. The rights of family reunification with Non-EEA family members has now changed dramatically.

British citizens who exercised their rights of free movement to Ireland prior to 31.12.20 will continue to hold rights to family reunion equivalent to those provided for by Directive 2004/28/EC and the European Communities (Free Movement of Persons) Regulations 2015.

British citizens who have moved to reside and work in Ireland and who wish to be joined by their Non-EEA family members from 1st January 2021 onwards will have their family members applications considered and assessed under this newly published scheme.

A key point to note is that all applications are to be made from outside of the State regardless of an applicant’s nationality. This is a fundamental difference to applications from family members of Irish and other Non-EEA family members- applicants from “visa required” countries apply for visas whilst remaining outside the State, applicants from “non visa required” countries can travel to the State and make their application for entry at the airport. For non-EEA family members of British citizens, a visa application must be made for visa required nationals and a preclearance application is to be made for non-visa required applicants.

The policy specifically confirms that an applicant currently in the State on visitor permission cannot apply from inside the State for a change to a long-term permission.

Where a non-EEA national holds a separate immigration permission within the State for the purpose of study, work, etc., and subsequently becomes the spouse/civil partner/ de facto partner of a British citizen, a change of status request may be made.

The INIS Policy on Non-EEA Family reunification, last updated in December 2016 continues to apply to the non-EEA family members of Irish citizens and legally resident Non-EEA nationals.

This new policy specifically relates to non-EEA family members of British citizens.

There are no minimum Irish residency requirements for UK citizens seeking to sponsor a specified non-EEA national family member.

Financial thresholds:

For all categories of applications:

In order to sponsor a specified non-EEA national family member, a UK citizen must not have been totally or predominantly reliant on social protection benefits in the State or to equivalent benefits in another State for a continuous period of at least 2 years prior to the application.

Applications involving spouses/ partners only:

The WFP does not apply in the case of a married couple, civil partner / de facto partnership where there are no children and consequently a minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.

Applications involving minor children/ dependent children up to the age of 22 of British citizen or partner/spouse of British citizen:

In addition, the sponsor must have earned a gross income in each of the 3 previous years in excess of that applied by the Department of Social Protection (DSP) in assessing eligibility for Working Family Payment (WFP).

4.6 A sponsor who wishes to reside with their dependent children in the State requires the net assessable income per week for their family size as set out by the Department of Social Protection (DSP) in assessing eligibility for the Working Family Payment, as published on that Department’s website. The sponsor should comply with those limits including with respect to any changes to the WFP as published at (http://www.welfare.ie/en/Pages/Working-Family-Payment-Op.aspx.)

Applications for dependent parents (aged 66 and over)

A sponsor will be required to have earned in each of the 3 years preceding the application, an income after tax and deductions of not less that €60,000 per annum in the case of one parent. €75,000 per annum applies where two parents are involved.

The expectation is that this minimum level of income will be maintained for the duration of any permission granted under this Scheme. Where such income levels are not maintained, permission may not be renewed under the Scheme. At the date of application, the sponsor is also required to show that he/she is capable of earning a sufficient level of income to support his/her dependent family members for the duration of their proposed residence in the State.

Eligible applicants

British citizens moving to Ireland from 1.1.21 onwards no longer have the legal entitlement to apply for entry and residence for their wider dependent Non-EEA family members and members of their households. Eligible family members are specifically listed under the Scheme and the immigration stamp to be granted to the applicant if successful are also outlined:

  • Spouse, (Stamp 4D)
  • civil partner, (Stamp 4D)
  • de factor partner (2 years cohabitation required), (Stamp 4D)
  • minor children, (Stamp 3 up to age of 18, Stamp 4D at age of 18 “upon application”).
  • children between the ages of 18 and 22 in certain circumstances of dependency (also applies to the children of the spouse/ civil partner and de facto partner of British citizen) (Stamp 4D)
  • elderly dependent parents of British citizen or spouse/partner of British citizen (must be 66 years of age of older), (Stamp 0).

The policy is silent on the conditions of Stamp 4D permission and the INIS webpage has not yet been updated to outline the conditions of Stamp 4D permission and any material differences between Stamp 4D and Stamp 4.

Other additional requirements:

There are also additional requirements, not required under the 2016 INIS family reunification policy document, namely the requirement for the applicants to have health insurance in place to commence from the date of entry to the State and the requirement to provide a police clearance certificate for any country resided in for in excess of 6 months over the previous 5 years.

Fees are payable in respect of applications under this scheme, €60 per visa/ pre clearance application and the registration fees of €300 will be applied to successful applicants.

Full details on the scheme can be found via the below:

http://www.inis.gov.ie/en/INIS/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf/Files/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf

http://www.inis.gov.ie/en/INIS/Pages/joining-your-uk-national-family-member-in-ireland

Please get in contact if you or your family are impacted by this new scheme.

CURRENT DELAYS ON THE PROCESSING OF EU TREATY RIGHTS APPLICATIONS

 

Principal of Berkeley Solicitors, Karen Berkeley, was quoted in The Times on the 6th July 2020 highlighting her concerns regarding the current delays in the processing of EU Treaty Rights applications.

The article referred to the Minister’s recent response to a Parliamentary Question, in which the Minister confirmed as follows:

There is a significant number of review cases on hand arising from a sustained increase in applications since 2014. Currently, there are 2,283 cases awaiting processing at EU Treaty Rights review stage, of which 1,751 review applications (76%) have been awaiting a decision for over a year, with the oldest cases having been received in May 2017.

Ms Berkeley indicated her concern regarding these delays which have been creeping up over the last number of years. She stated that the courts have suggested that six months is a reasonable timeframe for the EUTR review applications, and once the timeframe goes beyond six months the Department may potentially be in reach of the EU law.

Ms Berkeley highlighted some clients of her office are waiting up to 18 months for a decision, a clear breach of the EU law. She also confirmed that Berkeley Solicitors are currently taking cases to court for some clients who are experiencing these delays.

The delays are a particular problem for the family members of British citizens currently waiting the outcome of their EU Treaty Rights review applications. After the 31st December 2020, their EU Treaty Rights will cease due to the end of the Brexit transition period. There is no clarity on what will happen to these pending applications

Read the full article here:

https://www.thetimes.co.uk/article/immigration-permits-under-eu-treaty-taking-over-a-year-hn29fv09b

Read the Minister’s response to the Parliamentary Question here:

http://www.justice.ie/en/JELR/Pages/PQ-30-06-2020-287

UK BILL INTRODUCED TO END FREE MOVEMENT OF PEOPLE

The United Kingdom has recently passed The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which was first introduced on 5th March 2020. The Bill, which ends the principle of free movement of people in the United Kingdom, is set to be introduced upon the conclusion of the transitional period on 31st December 2020.

The Bill, passed by 351 votes to 252 on 18th May 2020, has marked concrete developments in the UK’s transition into a points-based immigration system. The UK government clarified in February that points will be awarded for certain requirements such as the ability to speak English, having a job offer from an approved employer and meeting a salary threshold of £25,600. Points may also be awarded for certain qualifications or for working in an area where there is a shortage of workers.

However, the Bill clearly prioritises migrants with “high skilled jobs” which concerningly appears to be determined based on financial thresholds above any other factor.

UK Home Secretary, Priti Patel, has stated “We’re ending free movement to open Britain up to the world. It will ensure people can come to our country based on what they have to offer, not where they come from.”

The Bill includes provisions intended to uphold the historical entitlement of Irish citizens to enter and remain in the UK without the need of seeking permission or leave to do so.

These provisions relating to Irish citizens will operate alongside the Common Travel Area (CTA) regime once EU freedom of movement comes to an end.

Under the CTA, Irish citizens are permitted to move freely between Ireland and the UK and vice versa. This extends to the right to enter, reside, pursue education, take up employment and access State benefits. On the 8th May 2019, both the Irish and UK government signed a Memorandum of Understanding which reiterated their commitment to the CTA and to the maintenance of the derived rights from this agreement.

The Bill has made it clear that the rights being afforded to Irish citizens are more far-reaching than those afforded to other EEA nationals. The UK government’s position is that Irish people will have a general right to reside in the UK which is separate to their rights as EU citizens.

Although this Bill provides legislative certainty to Irish citizens on their rights to enter and reside in the UK without leave, disappointingly the provisions are not yet provided for in comprehensive detail.

The Irish  Human Rights and Equality Commission called for an international treaty in their November 2018 report to formalise common immigration rules and the rights of Irish citizens in the UK during the wake of the uncertainty caused by Brexit.

The Bill places EEA and Non-EEA nationals on the same footing in terms of immigration permissions in the UK.

The free movement of people across 28 countries, considered to be one of the greatest achievements of the European Union, has been significantly reduced by this Bill.

The UK’s new system will take a restrictive economic approach to those considered eligible to travel to the UK and will disproportionately affect those not considered to be “skilled workers” i.e. those who earn less than £25,600 per annum.

This concern caused by this Bill is exacerbated by the ongoing Covid-19 crisis, and the proposed immigration rules will undoubtedly deem many healthcare workers ineligible to reside in the UK.

Despite the Home Secretary referring to the introduction of a fast-track visa for doctors, nurses and other health professions, the passing of this Bill will understandably create a huge amount of worry to those already facing extreme pressure and uncertainty caused by both Brexit and Covid-19.

It’s expected that this Bill will consequently restrict the freedom of movement of UK citizens in both the EU and outside the EU.

It seems that further details of the UK’s move towards a controversial points-based system will likely not be formalised until the conclusion of the transitional period in December 2020.

 

UK GOVERNMENT PUBLISHES DRAFT IMMIGRATION BILL GUARANTEEING RIGHT OF IRISH CITIZENS TO LIVE AND WORK IN THE UK POST BREXIT

Last month, the UK Government published the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which provides the legislative basis for ending EU free movement arrangements in the UK once the Brexit transition period has expired.

The Bill aims to retain the Common Travel Area rights of Irish citizens to live and work in the UK without restrictions. Section 2 of the Bill provides that “an Irish citizen does not require leave to enter or remain in the United Kingdom”. Exceptions to this include the possibility to deport Irish citizens for serious criminal offences.

The British Immigration Minister Kevin Foster has stated that the Bill “provides certainty and clarity for Irish citizens on their rights to enter and live in the UK, reflecting the reciprocal arrangements for British citizens in Ireland.”

In practice, the Bill will ensure that there is no change to free movement between Ireland and the UK for Irish citizens. This follows repeated assurances from both the Irish and UK governments that the Common Travel Area, which has been in place since 1922, will remain valid post-Brexit.

However, in its current form, the Bill does not provide Irish citizens with any right to have family members reside with them, unlike EU free movement law.

Other EU citizens may require visas to enter and reside in the UK from as early as 2021. The UK Home Office has announced its intention to introduce a points-based immigration system for both EU and non-EU citizens.

At present, these proposals are at a very early stage and are subject to change as the Bill moves through the legislative process. Members of Parliament are scheduled to consider the Bill for a second reading on Tuesday 21 April 2020.

The full text of the Bill can be found here.

BRITISH CITIZENS AND THEIR FAMILY MEMBERS IN IRELAND- THE RIGHT TO RESIDE IN THE EVENT OF A NO-DEAL BREXIT

As previously highlighted on Berkeley Solicitor’s Immigration Blog, the family members of British citizens resident in Ireland on the basis of EU FAM Residence Cards have received recent correspondence outlining “transitional arrangements” will be put in place in the event of a no- deal Brexit.

There is no clear outline in these letters as to what these transitional arrangements will be.

This has caused much anxiety to the holders of the EU FAM residence cards as highlighted by the Irish Times in their article of the 18th September 2019.

What is not mentioned is this article is that the further information and clarification outlined on The European Commission’s website which currently states as follows:

“Member States have prepared or adopted national contingency measures to ensure that UK nationals and their non-EU family members could remain legally resident in the immediate period after a no-deal withdrawal. To provide further clarity on the situation, the Commission, based on the information provided by the EU27 Member States, makes available an overview table and a Q&A on UK nationals’ residency rights in each of the EU27 Member States.  

Ireland

I am a UK national living in Ireland. In case of a no-deal scenario, what should I do to keep my residence rights after Brexit date? When should I do it?

All UK nationals have a right under the Common Travel Area to live in Ireland.

You do not need to take any action to continue to live in Ireland after Brexit date.

What will my rights be?   

Under the Common Travel Area (CTA), British citizens can move freely to, and reside in, Ireland and can enjoy associated rights and privileges including access to employment, healthcare, education, social benefits, and the right to vote in certain elections.

The Government of Ireland and the UK Government signed a Memorandum of Understanding on 8 May 2019‌, reaffirming their commitment to maintaining the CTA in all circumstances.

More details can be found here

How can I travel to other Member States or cross the EU external borders?     

You will have to carry your passport, and fulfil any visa requirements, which may be introduced by other Member States.

 I have resided in Ireland for more than five years. How can I obtain EU long-term residence status?   

Ireland, does not participate the Directive (2003/109/EC) which deals with long term residence for third country nationals.  Therefore, the EU long-term resident status does not apply for UK nationals in Ireland.

 My family members (spouse, children) are citizens of a third country (neither EU nor UK). What should they do to keep their residence rights?

  1. a) If they already have a residence card issued under EU free movement law, this will be considered as their temporary residence permit until 31 October 2020, i.e. 12 months after Brexit date. After 31 October 2020, i.e. 12 months after Brexit date, they will have to apply for a new residence permit, according to the law that will be applicable at that time.
  2. b) If they do not have a residence card, they will have to apply for a residence permit as soon as possible to regularise their position in the State. For information on the application process, please visit this website inis.gov.ie.”

It appears that the current plan is for family members of British citizens to hold their EU Fam residence card for one year as a “temporary residence card”, whilst the new “transitional provisions are put in place.

This suggests that the family members of British citizens do not have to take any steps as their current EU residence card will serve as their temporary residence permission pursuant to Irish law for the first year at least.

If you or your family members are affected please do not hesitate to get in contact with our office.

The European Commission Webpage can be accessed in full here.