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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 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.

SUPREME COURT CLARIFIES “DURABLE PARTNER” FOR PURPOSES OF EU TREATY RIGHTS APPLICATIONS

The Supreme Court delivered a significant judgement on the 2nd June 2020 in the case of Pervaiz v Minister for Justice [2020] IESC 27. The Supreme Court reviewed the decision of the High Court, with respect to an application for a EU Fam residence card by the non EU citizen partner of a Spanish citizen pursuant to the EU Free Movement of Persons (Regulations) 2015. The Supreme Court overturned the High Court ruling that the 2015 Regulations do not correctly transpose the Citizens Directive by reason of the absence of specific and detailed criteria with regards to the definition of “durable partner”. The Supreme Court also disagreed with the finding of the High Court, which took issue with the fact that the relevant parts of the Regulation simply repeat the words of the Directive itself. The Supreme Court also disagreed that the Minister had applied an unlawful requirement, requiring a period of two years cohabitation in order to meet the definition of a partner for the purposes of the regulations.

A preliminary issue in the proceedings was whether there was an issue that the proceedings were taken in the name of the Non-EU citizen applicant only, without his EU citizen partner being a party to the proceedings. The Supreme Court followed the findings of a number of rulings in the High Court that the applicant had the required standing to issue the proceedings in his own name. The Court also noted that the EU citizen in this case had supported the proceedings on affidavit.

The judgement provides a legal analysis of the differing rights of persons who can apply under the Regulations as “qualifying family members”, such as spouses and direct ascendants and descendants as opposed to “permitted family members” such as partners. The Court highlighted the varying rights of such applicants, with “permitted family members” only having a right to have their application “facilitated” and a “detailed examination of their personal circumstances” undertaken.

The Court held that the definition of “partner” in the 2015 Regulations denotes a person with whom the Union citizen has a connection which is personal in nature, and which is akin to, or broadly akin to, marriage.

With relation to the duration of the relationship and its relevance the Court found:

Thus, a durable partnership will tend to be one of some duration, but that is not to say that the duration of the relationship is, in itself, a defining feature. The length of a relationship will be an important, and sometimes compelling, index of the degree of commitment between the couple, but it is perfectly possible for a committed long-term, what is often called a “serious” relationship, to exist between persons who have known one and other for a short time.

With regards to whether cohabitation is required the Court found:

It would seem to me that cohabitation is in most cases a useful yardstick by which the durability of a relationship is assessed and by which it is possible to test whether persons are genuinely in a committed partnership

With regards to the argument that there is a lack of clarity as to what is required or what conditions need to be met with regards to the duration of a relationship and the period of cohabitation in order to be eligible to apply for a residence card as the partner of the EU citizen the Court disagreed and held: There is, in my view, no lack of clarity in the 2015 Regulations and in the other resources so that an applicant may readily understand the proofs to be met.

The Court found that the Minister did not impose an unlawful requirement of two years prior cohabitation, the Court accepted the Minister’s case that the two year cohabitation is not applied as a strict requirement and is used flexibly. The Court found that any imposition of a two year strict requirement could not be imposed without amending the legislation. The Court did not accept the argument that the two year cohabitation requirement was mandatory in nature.

It is beneficial to applications to now have confirmation that the Minister does not impose a mandatory two year cohabitation requirement and that the Minister should assess each case on its own particular facts.

Please contact the office if you wish to make an EU Fam Residence card application for yourself or your family member.

The full judgement will be published shortly.

UK GOVERNMENT CONFIRMS PEOPLE BORN IN NORTHERN IRELAND ARE TO BE CONSIDERED EU CITIZENS FOR CERTAIN IMMIGRATION PURPOSES

The UK Government has announced a change to its immigration laws following a landmark court case involving Derry woman Emma De Souza and her US-born husband Jake De Souza.

The case concerned the right of people in Northern Ireland to be considered Irish or British citizens, or both, as per the terms of the 1998 Good Friday Agreement.

Mr De Souza had applied to the UK Home Office for an EEA residence card to live and work in Northern Ireland on the basis of his marriage to Ms De Souza in 2015. The application was rejected on the basis that Ms De Souza was considered a British citizen because she was born in Northern Ireland, and therefore she was not entitled to EU free movement rights. This was despite the fact that Ms De Souza had never held a British passport and identified as an Irish citizen.

The UK Home Office originally argued that people born in Northern Ireland are automatically British citizens according to the 1981 British Nationality Act, even if they identify as Irish. It stated that the only way it could deal with Mr De Souza’s application was if Ms De Souza renounced her status as a British citizen.

Ms De Souza argued that the UK’s immigration laws were incompatible with the right of Northern Irish people to be accepted as Irish or British, or both, under the Good Friday Agreement.

The UK Home Office has now made a change to its immigration laws, confirming that British and Irish citizens born in Northern Ireland will be treated as EU citizens.

This decision has far-reaching consequences in light of the UK’s EU Settlement Scheme, which is open for applications until June 2021. The Scheme allows EU citizens and their family members to apply to reside in the UK post-Brexit. Until now, family members of British or dual British-Irish citizens from Northern Ireland were ineligible to apply for status under the Scheme.

All citizens in Northern Ireland will now have the right to apply for a non-EEA family member to remain in the UK through the Scheme, up until June 2021. This means that British citizens in Northern Ireland now have more rights than their counterparts in England, Wales and Scotland.

Speaking about the announcement, Ms De Souza commented:

“These changes are on the back of years of campaigning for the full recognition of our right to be accepted as Irish or British or both under the Good Friday Agreement.

We have always contended that no-one should be forced to adopt or renounce a citizenship in order to access rights, to do so goes against both the letter and the spirit of the Good Friday Agreement, the Home Office now concedes that point.

These changes will only apply to Northern Ireland and recognise the unique status that the region holds within the United Kingdom. Something that we have longed called for.

We personally know a number of families that will benefit from this change and are filled with joy and relief that these families will not face calls to renounce British citizenship or face years in court like we have.”

COVID-19 AND INIS REGISTRATION REQUIREMENTS

On the 13th March 2020, the EU Treaty Rights Section have announced the following new measures;

In response to Government measures to ensure public health and safety in light of COVID-19, EU Treaty Rights Division of Immigration Service Delivery wishes to advise of the following arrangements with immediate effect.

  1. If you are the holder of a valid EUFam Residence card (including a Permanent Residence Card) that is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  2. If you are currently the holder of a valid temporary permission granted pending a decision on your EU Treaty Rights application (including a review application) and that permission is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  3. If you have recently made a Residence Card application and have not yet heard from EU Treaty Rights Division in this regard, and the permission granted on entry to the State is due to expire on or before 29th March 2020, this permission will be extended automatically until Monday 27th April 2020.

You do not need to contact EU Treaty Rights Division during this period to request an extension of your residence card or permission.

Due to the uncertainty of the situation, delays may occur.  Further updates will be provided in due course.

 

See link below:

 

http://www.inis.gov.ie/en/INIS/Pages/EU+Treaty+Rights

 

This exceptional measure to automatically extend EU Treaty Rights residence permissions until the 27th April 2020 is a welcome and necessary measure.

 

However, no such announcement has been made in respect of the automatic extensions of residence permissions issued under Irish law.  In fact, it has been confirmed that the Burgh Quay registration office will proceed as normal, with some minor changes;

 

Registration of immigration permissions at Burgh Quay will proceed as normal using a streamlined process designed to minimise the amount of time applicants need to spend in the office. In that regard, applicants must not bring family members or friends with them for registration, unless required to do so as part of the verification process, as this increases overall risks;

 

http://www.inis.gov.ie/en/INIS/Pages/updated-measures-to-respond-to-COVID-19-from-the-Immigration-Service-Delivery-Function-of-the-Department-Justice-and-Equality

Thus, many non-nationals are currently still required to attend the Burgh Quay Registration Office in person to extend their permission in circumstances, most likely in breach of the current guidelines regarding the Covid19 Crisis.

We would appeal to the Minister to urgently issue updated guidelines for all non-nationals to obtain automatic extensions of their permissions in these exceptional times.

 

Berkeley Solicitors

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

Applications for visas and residence cards for family members of EU citizens pursuant to EU Treaty Rights often require proof that the Applicant is dependent on their EU Citizen family member.

The concept of dependency is not defined in the Citizens’ Rights Directive (Directive 2004/38/EC) or the European Communities (Free Movement of Persons) Regulations 2015. However, case law of the Court of Justice of the EU has established that an Applicant must show that they are not in a position to support themselves, having regard to their financial and social conditions.

Thus, while dependency is often assessed in terms of the existence of financial support between the Applicant and the EU Citizen, it can also arise from social, emotional and medical circumstances.

Several recent judgments of the High Court have shed some light on the importance of social dependency in EU Treaty Rights cases.

The case of Chittajallu v The Minister for Justice and Equality, Record Number 2019/28, in which Berkeley Solicitors were acting for the Applicant, involved a British citizen who submitted a visa application for her dependent mother.

In his judgment delivered on 11th July 2019, Mr Justice Barrett highlighted that the Minister had not properly considered the issue of social dependency arising from the Applicant’s medical circumstances in the initial decision.

Berkeley Solicitors also acted for the Applicant in the case of Agha v The Minister for Justice and Equality, Record Number 2019/374, the facts of which similarly involved a British citizen who applied for a visa for his elderly dependent mother who had serious health issues and was not capable of living independently.

In his judgment of 23rd December 2019, Mr Justice Barrett states at paragraph 6:

“There is a further separate error presenting in this regard, viz. that, in breach of European Union law, the Minister did not have any regard to the particular illness of Mr Agha’s mother and how this impacted on dependence…

As is clear from Jia, at para. 37 (as touched upon in Chittajallu v. Minister for Justice & Equality [2019] IEHC 521, at para. 4): “in order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess, whether, having regard to their financial and social conditions, they are not in a position to support themselves” [Emphasis added]. No such analysis was not undertaken here…”

It is clear from the above High Court decisions that a failure to take into account an Applicant’s social dependency on the EU citizen constitutes a breach of EU law. An analysis of the Applicant’s financial dependency alone will not be sufficient.

In both of the above cases, the Court ruled that the initial refusal was unlawful and remitted the matter to the Minister for fresh consideration.

This is a positive development for family members who are dependent on their EU Citizen family member for reasons other than, or in addition to, their financial circumstances.

Social dependency may arise from factors such as an Applicant’s medical circumstances or the nature of the social and emotional relationship between the Applicant and the EU Citizen.

If you or a family member wish to discuss an EU Treaty Rights application, please do not hesitate to contact our office.

The full judgments will be published shortly on the website of the courts, which can be found here.

COURT OF APPEAL JUDGMENT ON MEMBERSHIP OF THE SAME HOUSEHOLD IN EU TREATY RIGHTS CASES

On the 19th December 2019, the Court of Appeal delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality, in which Berkeley Solicitors acted for the Applicants.

The decision is significant for family members of EU citizens who have applications, or are considering making applications, for visas or residence cards based on the fact that they are members of the same household of an EU citizen family member under Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, (‘the Citizens Directive’).

The case concerned the refusal of an EU Fam residence card to the cousin of a British citizen, who had lived as the member of his household for many years in the United Kingdom prior to moving to Ireland.

The central issue before the Court of Appeal was the meaning of the term ‘household of the Union Citizen’  for the purposes of the Citizens’ Directive.

The Applicants argued that the household of the Union citizen consists of those persons who are family members and who reside in the same dwelling as the Union citizen. The Respondent argued that what is to be established is that the household concerned is that of the Union citizen, and that the centrality of the Union citizen in the family living arrangements is to be assessed.

The Applicants also put forward submissions regarding other language versions of the term ‘membership of the same household’ and found that there was no ‘head of the household’  test in those versions.

Ms Justice Baker ultimately upheld the decision of the High Court in finding that the criterion of ‘membership of the same household’ is not simply established where family members live under the same roof. Rather, members of the household of the Union citizen must be those persons who are some way central to the family life of the Union citizen.

The Court held:

“68. It may be more useful to consider the notion of household by reference to what it is not. Persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them.

69. It is not a test of with whom the Union citizen would choose to live, but rather, with whom he or she expects to be permitted or facilitated to live in order that his or her family unit would continue in being, and the loss of whom in the family unit is a material factor that might impede the Union citizen choosing to or being able to exercise free movement rights. That second element, it seems to me, properly reflects the core principle intended to be protected by the Citizens Directive.

70. It may be dangerous to give an example, and I do so by way of illustration only. A family member who had resided in the same house as a Union citizen for many years before free movement rights were exercised might well have become a member of the family with whom there has developed a degree of emotional closeness such that the person is integral to the family life of the Union citizen. That person could be a member of a household because the living arrangements display connecting factors that might, in an individual case, be termed a “household”. If the rights of free movement of a Union citizen within the group are likely to be impaired by the fact of that living arrangement, whether for reasons of the moral duty owed to the other members of the group or otherwise, then the rights under the Citizens Directive fall for consideration.”

The Court found that the EU Citizen’s Free Movement rights where not impeded or restricted by refusing a right of residence to his family member in this case.

The full judgment has been published on the website of the courts and can be found here.

NOTE ON DEPARTMENT OF FOREIGN AFFAIRS WEB PAGE RE BRITAIN’S DEPARTURE FROM THE EUROPEAN UNION

British and EU citizens and their non-EEA Family members understandably have a lot of questions and concerns regarding their status, rights of residence and ongoing rights following Britain’s Departure from the EU.

Highly published negotiations are ongoing between the EU and Britain in order to agree the terms and conditions of Britain’s ultimate departure from the EU.

The primary/initial stages of this negotiation process addressed in principle three main issues, including, guaranteeing citizen’s rights, the rights of those currently living in the UK and UK citizens currently living in the EU.

The Department of Foreign Affairs has placed a section on its webpage specifically dedicated to Brexit and Ireland’s position with regards to same.

A note on same currently outlines that, in principle, certain elements of the draft Withdrawal Agreement have been agreed by the EU and UK negotiating teams.

Of particular note is the agreement in principle that EU law will continue to apply to the UK after it leaves the EU on 29th March 2019 up until 31st December 2020.

The draft proposals relating to the protection of EU citizens rights in the UK outlines that EU citizens and their family members will be required to apply for “status” in the UK within two years from the date of withdrawal- up to 29th March 2021. The draft proposals that the UK will apply a system for the grant of “UK status” under the same requirements as Directive 2004/38/EC. In essence if an applicant- EU citizen/ Non-EEA Family member of an EU citizen would have been/is eligible for residence in the UK under the Directive, then UK status will be issued to them. If applicants would not have been eligible/ met the conditions under the Directive then UK Status will be refused- those refused will be entitled to judicial redress if their applications are refused.

Full agreement of course has yet to be reached in terms of the manner of Britain’s exit from the EU and the impact this will have on the rights of EU and British citizens and their family members.