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MINISTER FOR JUSTICE ANSWERS PARLIAMENTARY QUESTION RELATING TO DELAY IN PROCESSING TIME FOR CITIZENSHIP APPLICATIONS

Many of our clients are currently experiencing considerable delays in the processing and determination of their applications for Irish citizenship.

On 8th October 2020, Danny Healy-Rae TD put a parliamentary question to the Minister for Justice, asking her to confirm the current waiting time for the processing of citizenship applications, as well as the measures being taken to deal with the backlog of applications.

In response to this question the Minister stated as follows:

“The granting of Irish citizenship through naturalisation under the provisions of the Irish Nationality and Citizenship Act 1956, as amended, is a privilege and an honour which confers certain rights and entitlements, not only within the State but also at European Union as well as international level. It is therefore important that appropriate procedures are in place to ensure that the integrity of the regime for granting Irish citizenship through the naturalisation process is held in high regard both at home and internationally. Our procedures are continually evolving including through service improvements due to the introduction of new technology and updated work practices.

In general, it takes around 12 months for a standard application to be processed from the date it is received to the date a decision is made. However, the nature of the naturalisation process is such that, for a broad range of reasons, some cases will take longer than others to process. Completing the necessary checks can take a considerable period of time.

A legal challenge was taken in the High Court last year by an applicant who was refused a certificate of naturalisation due to his absences from the State during the last year continuous prior to the date of his application. The outcome of this ruling – which was subsequently successfully appealed to the Court of Appeal – resulted in significant delays to the processing of naturalisation applications last year. In addition, the restrictions caused by the COVID-19 pandemic have regrettably resulted in significant challenges to the delivery of normal services.”

The question put to the Minister and the answer given can be read in full here.

We are aware of an increasing number of applicants who have been waiting more than two years on the determination of their application, and in some cases as long as four years.

We understand that such long and continued delays are very frustrating for many people.

If you or a family member have queries about the delay in the processing of your application, we encourage you to contact our office.

MINISTER FOR JUSTICE ANSWERS PARLIAMENTARY QUESTIONS RELATING TO EU TREATY RIGHTS REVIEW APPLICATIONS

On Tuesday 22nd September 2020, Holly Cairns TD put a number of parliamentary questions to the Minister for Justice relating to EU Treaty Rights review applications.

Deputy Cairns asked the Minister to provide details of the immigration status given to individuals that are waiting for a decision on EUTR review applications, and further asked if persons that are waiting for an EUTR review decision are permitted to work or to claim Covid-19 pandemic emergency payments.

In response to these questions the Minister stated as follows:

“A person who applies for a Residence Card on the basis of being a Qualified Family Member (QFM) of an EU National will generally be granted a Temporary Stamp 4 (TS4) of 6-9 months duration, on application, pending the processing of their application. A TS4 enables a person to live and work in the State.

If their application is refused, and they apply for a Review of this decision, another Temporary Stamp 4 will generally be issued to them, pending the Review application being processed, and a final review decision issuing. A successful QFM applicant at either application stage or Review stage will be issued a Residence card of 5 years duration (Stamp 4 EUFam).

Permitted Family Member (PFM) applicants, unlike Qualified Family Member applicants, are not issued with a temporary stamp on application or review. If a PFM applicant is deemed to be a PFM of an EU Citizen exercising their Treaty Rights, under the terms of the Directive, either when their application is processed, or when their review decision is processed, they will be issued a Residence Card of 5 years duration. (Stamp4 EUFam).

Anyone who has lost their job as a result of the COVID-19 pandemic can apply to the Department of Employment Affairs and Social Protection for the Pandemic Unemployment Payment.”

Deputy Cairns also asked the Minister to provide details of the pending EUTR review applications according to nationality in tabular form.

The Minister confirmed that there are currently 2,142 review applications being processed in respect of 91 different nationalities. A table detailing the number of applications and the nationalities of the applicants was also published and can be accessed here.

The questions put to the Minister and the answers given can be read in full here and here.

If you or a family member have any queries about an EU Treaty Rights application, please do not hesitate to contact our office.

DEPARTMENT OF JUSTICE ANNOUNCES FURTHER RESUMPTION OF VISA SERVICES

On 25th September 2020, the Department of Justice published an announcement on its website confirming that it has recommenced issuing decisions for certain visa categories.

Due to Covid-19, the Department had been issuing decisions in respect of the Emergency/Priority categories of visas only.

The announcement states as follows:

“We can now confirm that we have also recommenced issuing decisions on certain long-stay visas which include categories such as Third level study at primary degree and postgraduate level, Employment and Join Family.

You should note that while we continue to accept applications for English Languages studies, decisions on applications from new students will remain on hold pending further consideration by the relevant authorities.”

It remains the position that we are not accepting any short stay visa applications, except for cases that fall under the Emergency/Priority criteria.”

The Department further announced that it has expanded the list of exemptions which fall under Emergency/Priority to include those specific categories of travellers, identified as having an essential function or need in the EU Council Recommendation (EU) 2020/912 of 30 June 2020.

The full notice can be read here.

DEPARTMENT OF JUSTICE PUBLISHES NOTICE FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS WHO ARE RESIDING IN IRELAND

On 17th September 2020, the Department of Justice published an updated notice regarding the status of non-EEA family members of British citizens who are residing in Ireland.

The Brexit transition period is due to end on 31st December 2020.

The notice states as follows:

From the end of the transition period, non-EEA family members of British citizens that are newly resident in Ireland will not come within the scope of the EU Free Movement Directive. A separate preclearance scheme will apply to such persons seeking to reside in the State, and they should be in possession of a valid travel document and, if required, an Irish entry visa or transit visa for the State.”

We at Berkeley Solicitors welcome this update but the lack of clarity is concerning. The notice does not provide any information as to what will happen to applicants who have pending EUFam residence card applications that remain undetermined by 31st December 2020.

Our clients still do not have confirmation of what immigration rules and financial thresholds will be applied to residence/ pre clearance applications from the family members of British citizens after the 31st December 2020.

While the notice states that a separate preclearance scheme will apply to such persons seeking to reside in the State after the end of the transition period, details of the new preclearance scheme have not yet been announced.

We are also aware that a large number of residence applications for non-EEA family members of British citizens are taking considerably longer than six months to be determined. This is of great concern as the Minister is breaching the obligation to determine these applications within a six-month timeframe, thereby putting British citizens and their family members at risk that they may be refused after the 31st December 2020.

The full notice can be read here.

If you or your family are impacted by these issues please do not hesitate to contact the office.

HIGH COURT JUDGEMENT ON TEST FOR DEPENDENCY IN EU TREATY RIGHTS CASES

On 10th June 2020, Mr Justice Humphreys delivered his judgement in the case of Asif Rashid and Qasim Rashid v The Minister for Justice and Equality [2020] IEHC 333.

The first-named applicant is a British citizen, and his brother, the second-named applicant, is a citizen of Pakistan.

The central issue in the case was whether the Minister for Justice had erred in finding that no relationship of dependency had been established between the first and second-named applicants.

The Court ultimately upheld the decision of the Minister for Justice to refuse the second-named applicant’s application for residence based on his dependency on his EU Citizen brother.

Mr Justice Humphreys emphasised that the test for dependency in EU Treaty Rights cases is “definitively to be found in the CJEU jurisprudence, the most helpful summary of which is at paras. 19-28 of Case C-423/12 Reyes v. Migrationsverket”.

The Court found that the concept of dependency as defined in national case law, most notably in the case of VK v Minister for Justice and Law Reform [2019] IECA 232, does not change or add to the test for dependency established by existing CJEU jurisprudence.

In this regard the Court stated at paragraph 10:

“…the test has been phrased in different ways in different cases so the V.K. judgment should most certainly not be treated as a statute imposing another finer mesh of procedural and substantive legal complexity on top of the existing law. The really central point is the one [Baker J] makes at para. 81 of her judgment that “The test for dependence is one of EU law”. Therefore, any paraphrases in national jurisprudence are just that; and any language in any Irish case that is not found in CJEU jurisprudence is not creating or changing the CJEU jurisprudence. The latter remains the primary source of the meaning of dependency irrespective of any decisions at national level.”

The Court stated that the key issues in establishing dependency are the regularity of money transfers to the dependant applicant over a significant period, the necessity of those payments in enabling the dependant to support himself or herself in their country of origin, the financial and social conditions of the dependant, and the demonstration of a real situation of dependence.

Importantly, the Court emphasised that the payment of significant sums on a regular basis to the dependant in the country of origin, will not, by itself, constitute sufficient evidence of dependency.

This judgment of the High Court can be seen as a more conservative approach to the concept of dependency in EU Treaty Rights cases.

The full judgement can be read here.

If you or a family member have queries about EU Treaty Rights, please do not hesitate to contact the office.

MINISTER FOR JUSTICE COMMENTS ON REGULARISATION OF STATUS FOR UNDOCUMENTED MIGRANTS IN IRELAND

On 26th June 2020, the new coalition government of Fianna Fáil, Fine Gael and the Green Party endorsed the Programme for Government, which contains a commitment to regularise the status of undocumented migrants in Ireland.

In response to a Parliamentary Question put to her on 14th July 2020, the Minister for Justice has announced that a policy paper on this matter is currently being drafted by officials in the Department of Justice.

The Minister stated:

“The Programme for Government contains a commitment to create new pathways for long-term undocumented people and their dependents meeting specified criteria to regularise their status within 18 months of the formation of the Government, bearing in mind European Union and Common Travel Area commitments. Ireland along with other Member States of the EU, has committed, under the European Pact on Immigration and Asylum (2008), to a case-by-case approach as opposed to mass regularisation.

A policy paper on the matter is being drafted by my officials at the present time. This will include an assessment of international best practices.

In all cases, people must engage with the authorities if they wish to be permitted to remain here legally. I would encourage any person who is resident in the State without permission to contact my Department or their local immigration office and to take all appropriate steps to regularise their own and their family’s status.”

At present there has been no final agreement on this scheme or how it would operate but the Government has committed to establishing such a scheme within the next 18-month period.

We at Berkeley Solicitors fully support the implementation of a scheme to regularise the status of undocumented migrants and will publish any future developments on this on our website.

If you or a family member have any queries about your immigration status, please do not hesitate contact our office.

Please be aware that no such scheme exists at present and no new application process is currently available.

INIS ANNOUNCES REOPENING OF REGISTRATION OFFICES OUTSIDE DUBLIN

Following three months of closures due to Covid-19 restrictions, INIS has announced that Registration Offices outside Dublin will be reopening on a phased basis in line with the Government roadmap.

The INIS website has published a list of opening dates in respect of individual registration offices.

Many are due to open between 20th July 2020 and 15th August 2020, however a number have yet to confirm a reopening date.

The full notice, which details the opening dates of individual offices, can be read here.

Email addresses for each registration office are provided for queries and the arranging of appointments.  INIS has advised that persons wishing to register or renew should contact the Immigration Officer on the email address provided prior to attending at a Garda Station as individuals without an appointment will not be seen.

MINISTER FOR JUSTICE ANNOUNCES BURGH QUAY REGISTRATION OFFICE TO REOPEN AND EXPANSION OF ONLINE REGISTRATION RENEWAL SYSTEM

On 7th July 2020 the Minister for Justice, Helen McEntee, announced that the Online Renewal system for immigration permissions will be expanded to allow all Dublin based non-nationals to apply online to renew their immigration registration.

It is expected that this will make the renewal process easier for thousands of people every year, and significantly reduce the number of people who need to attend the Burgh Quay Registration Office in person.

The online system will be made available from 7th July 2020 for those with an urgent need to travel and who require an Immigration Residence Permit (IRP) card before they travel.

Making the announcement, the Minister stated:

“I’m very pleased to be able to announce the expansion of our online Registration Renewal System. This is good news for our Dublin based customers because it makes the whole process easier and means they can do their renewal from the comfort of their own home instead of having to book an appointment to come into the city and attend Burgh Quay. 

 Now, all that applicants have to do is complete a form online, upload supporting documents, pay the fee and then submit their passport and current IRP card via registered post. This is much easier and quicker than the previous system, where it could sometimes be difficult to get an appointment.” 

The Minister also announced that the Burgh Quay Registration Office will reopen on 20th July 2020 for first time registration. As first-time registrations require biometrics to be taken, it is not possible to for these to be done online.

Individuals who had their first-time registration appointments cancelled when the Burgh Quay office closed in March due to Covid-19 restrictions will be prioritised once the office reopens. The Immigration Service Delivery will be contacting those affected to organise new appointments.

The full announcement can be read here.

If you or a family member have queries about your immigration permission, please do not hesitate to contact our office.

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

NO NEW VISA APPLICATIONS ACCEPTED BY INIS SINCE MARCH 2020

RTÉ News has reported that the Irish Naturalisation and Immigration Service has not accepted any new visa applications as of 20th March 2020 due to Covid-19.

A spokesperson from the Department of Justice was quoted as saying:

“While it will still be possible to apply for an Irish visa online in the normal manner, these temporary measures mean that applicants will not be able to complete their application process. However, any application made online will remain valid until such time as restrictions are lifted.”

VFS Global, which provides a wide range of visa-related services, has also closed many of its Visa Application Centres.

The VFS website states that Ireland has suspended visa services globally as of 23rd March 2020.

This is despite the fact that a limited category of “Priority/Emergency” visas are still being processed, as outlined in INIS notice issued on 21st March 2020. These include professionals, health researchers and elderly care professionals, immediate family members of Irish citizens who are returning to their ordinary place of residence in Ireland, persons legally resident in the State, and persons entitled to avail of the provisions of the EU Free Movement Directive.

In instances where the local Consulate or Embassy is unable to process visa applications falling within these categories due to local Covid-19 restrictions, the Department has arranged to accept visa applications in its Dublin Visa Office.

RTÉ News questioned whether the decision to cease accepting new visa applications since March 2020 was allowing any backlog of applications to be cleared, and asked the Department of Justice to clarify what the situation is today.

The Department responded:

“…it is not possible to state a total number of employment visa applications on hand at a specific point in time, be it December or now. This is because of the fact that visas are received and processed throughout our network of missions globally and not just at the office here in Dublin.”

The spokesperson for the Department also stated that the intention is to resume accepting visa applications as soon as it is safe to do so.

The article can be read in full here.

If you or a family member have any queries about applying for an Irish visa, please do not hesitate to contact our office.