Tag Archive for: eu treaty rights

BERKELEY SOLICITORS IS RECRUITING FOR AN IMMIGRATION SOLICITOR

Berkeley Solicitors is recruiting for an Immigration Solicitor.

Please see attached add for further details: CLICK HERE

 

NEW ENTRY AND TRANSIT VISA REQUIREMENTS FOR CERTAIN AFRICAN COUNTRIES AMENDED

We refer to our previous blog on 30th November 2021:

https://berkeleysolicitors.ie/new-entry-and-transit-visa-requirements-for-certain-african-countries-announced/

The Minister for Justice has amended the  entry visa and transit visa requirements for nationals of South Africa, Botswana, Eswatini, Lesotho  and Namibia.

The priority categories for which visa applications will be accepted and processed  has been amended and severely reduced to the following:

  • has obtained or is entitled to apply for a right of residence under EU Free Movement;
  • has a valid Residence Permission in the State under the immigration Acts (including persons covered by the interim arrangements that apply from 15 November 2021 to 15 January 2021
  • is a family member of an Irish citizen
  • has not been in one of the following countries (South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique, and Zimbabwe) in the previous 14 days prior to the date of travel to the State;
  • is a diplomat and to whom the privileges and immunities conferred by an international agreement or arrangement or customary international law apply in the State, pursuant to the Diplomatic Relations and Immunities Acts 1967 to 2006 or any other enactment or the Constitution.

This is severely reduced from the previous notice, which included employment permit holders and all join family visa applications.

Affected persons  should also take note of the Minister’s note of caution that further changes may take place at short notice.

If this affects you or your family, please get in contact with Berkeley Solicitors to discuss your case.

 

ONUS ON MINISTER TO CARRY OUT RIGOROUS INVESTIGATIONS BEFORE MAKING AN ALLEGATION OF FRAUD AGAINST APPLICANTS

In the judgment of Mr Justice Max Barrett in the case of Jaysheering Saneecher and Nikolajs Samkovs V The Minister for Justice and Equality delivered on 5th May 2021 it was concluded that:

‘an investigation resulting in a determination that an application is fraudulent must be rigorous’

In this case, the Minister had disputed several facts which had been submitted by the applicants in their EU Treaty Rights application and therefore it was refused on fraudulent grounds.

In response to this Mr Justice Barrett commented that:

‘an error on a payslip could not, by itself, reasonably ground the serious finding that the applicant’s application was fraudulent.’ and that ‘the Minister’s investigation process in this regard was disproportionately lacking in rigour and did not yield a safe finding.’

Furthermore, Mr Justice Barrett was critical of the Minister’s failure to conduct a proportionality assessment and stated that:

‘a blanket cessation of any EU treaty rights presenting – is utterly dis-proportionate.’

This is a welcome judgment which reiterates that there is a strong onus on the Minister to carry out a rigorous and thorough investigation before making an allegation of fraud in an EU Treaty Rights application.

Please do not hesitate to contact us if you are affected by this notice or by the matters raised in this blog.

DEPARTMENT OF JUSTICE ANNOUNCES EU TREATY RIGHTS AND DOMESTIC RESIDENCE APPLICATIONS CAN BE SUBMITTED ELECTRONICALLY DURING COVID-19 RESTRICTIONS

On 15th January 2021, the Department of Justice published an updated notice regarding the submission of certain immigration applications during Covid-19 restrictions.

The notice confirms that as a temporary measure between Monday 18th January 2021 and Friday 30th April 2021, both EU Treaty Rights and Domestic Residence applications can be submitted by email with copies of supporting documentation.

In normal circumstances these applications need to be submitted by post with hard copy documents.

Any original documentation that is required for the application may need be submitted by post at a later date. The notice further states that documents should be submitted in PDF format.

This is a welcome development which will simplify the application process during the current Covid-19 lockdown.

The full notice can be read here.

If you have queries about EU Treaty Rights and Domestic Residence applications, please do not hesitate to contact the office.

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.

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

On the 21st December 2020, the Supreme Court delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality.

The applicants, who are clients’ of Berkeley Solicitors, issued proceedings to challenge a refusal of the EU residence card on the basis that the applicant was not a member of the household of the EU citizen. For further details on this case, refer to our previous article below:

https://berkeleysolicitors.ie/court-of-appeal-judgment-on-membership-of-the-same-household-in-eu-treaty-rights-cases/

The Subhan and Ali case has become a test case to establish the meaning of the term members of the household of the Union citizen” for the purposes of the Citizens’ Directive, and has a number of cases following it in the High Court holding list.

Mr Justice Charleton, who delivered the judgement on behalf of the Supreme Court today, stated the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another, requires reference to the CJEU.

The questions to be referred to the CJEU are as follows:

  1. Can the term member of the household of an EU citizen, as used in Article 3 of Directive 2004/38/EC, be defined so as to be of universal application throughout the EU and if so what is that definition?
  2. If that term cannot be defined, by what criteria are judges to look at evidence so that national courts may decide according to a settled list of factors who is or who is not a member of the household of an EU citizen for the purpose of freedom of movement?

The reference to the CJEU is welcomed as this should finally bring clarity to who is entitled to a residence card as a member of the EU citizen’s household.

Further updates on this case will be posted here.

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.

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