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UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.

 

IMPORTANT DEVELOPMENTS ON THE RIGHT TO WORK FOR ASYLUM SEEKERS

 

The Government is to lift some of the restrictions facing asylum-seekers seeking work and allow for greater access to social welfare payments and alternative accommodation. Last May it was declared by the Supreme Court that the ban on asylum seekers entering employment was unconstitutional “in principle” and the cabinet agreed to lift the ban last November, in line with a European directive.

Currently asylum-seekers who are in direct provision in Ireland currently have a weekly allowance of €21.60 and can buy food using a recently introduced points system. As of December 2017, there are 5,096 people within direct provision. Before the 20-year-old ban preventing people seeking asylum from working was lifted the direct provision program was undeniably restrictive and rigid. About 3,000 people face a wait of about a year and a half for a decision on their asylum claim.

The proposals regarding the conditions under which the ban will be lifted will be announced by Mr Flanagan and Minister of State David Staunton. The proposals come a year after the Supreme Court found the ban on asylum seekers working in this country was unconstitutional. The ban however is not lifted in its entirety. There are still restrictions on certain occupations that cannot be accessed by asylum-seekers within direct provision. Asylum seekers will be able to seek any form of employment except with An Garda Síochána, the Defence Forces or the Civil Service.

Government claim the decision to deny access to the Garda, the Defence Forces and the Civil Service was due to the permanent nature of the positions. “It is not clear whether all asylum seekers will become permanent residents and therefore until that is clear, they will not be in a position to work in those three sectors. However, they will be able to work elsewhere.” With this in mind it is still a massive step forward regarding the status of asylum-seekers. Access to social welfare payments will also be permitted to those who find employment.

Granting people, the right to work brings Ireland into line with other European countries. The governments justification for the ban in Ireland has been that it will create a pull factor, increasing the number of asylum seekers looking to seek refuge in Ireland. It is the topic of constant debate.

People can also be asked to pay towards the cost of their direct provision accommodation if their earning exceeds certain limits, but this contribution will be capped at around €35 per

day, the cost to the state of providing direct provision per person. If a person is granted permission to gain employment and have been working for over 12 weeks, their direct provision allowance of €21.60 will be reduced or withdrawn. Children’s allowance will not have their allowance taken and will not be charged for their accommodation if their parents are working.

Refugee support groups are welcoming new measures which open the Irish labour market to asylum seekers.

We at Berkeley Solicitors also welcome this development which we submit now brings Ireland in line with our legal obligations towards asylum seekers. We believe that it is logical that asylum seekers are given the opportunity to support themselves while they await the outcome of their application for protection. It will also create a fairer and more humane asylum system.

Berkeley Solicitors