Tag Archive for: Immigration in Ireland

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE EUROPEAN COURT OF JUSTICE IN SUBHAN AND ALI

On the 15th of September 2022, the Court of Justice of the European Union delivered a seminal judgement in the area of EU free movement law, finding in favour of the applicants in the case of C-22/21  (Subhan and Ali v the Minister for Justice and Equality.)

The judgment can be found here.

The applicants, who are long standing clients of Berkeley Solicitors, first issued proceedings in 2016 to challenge the Minister’s refusal of an EU residence card to the non-EEA national cousin of a British citizen in 2015. The Minster had refused the residence card application on the basis that evidence had not been provided that the EU citizen was the “head of the household”. The Subhan and Ali case became the test case for many other applicants also challenging the Minister’s decisions relating to the interpretation of term “members of the household of the union citizen” in the context of Directive 2004/38/EC.

On the 14th January 2021, the Irish Supreme Court made a preliminary reference to the CJEU to seeking a definition of the term “member of the household of an EU citizen”.

The Court of Justice’s judgment delivered today confirmed that the inclusion of the concept of “head of the household”, adopted by Ireland in its narrow assessment of the definition “members of the household”, amounts to an additional criterion not provided for in the wording of Article 3(2)(a) of Directive 2004/38/EC and is not permissible. The Minister’s finding in the Applicants’ case was therefore unlawful and imposed an additional test not envisaged by the Directive and would amount to imposing, in practice, an additional criterion not provided for in the wording of that provision. The decision therefore clearly holds the “head of the household test” applied by the Minister against the applicants was not in accordance with the EU Directive.

This ruling goes much further than declaring the legality of the Applicants decision under challenge,  as the Court of Justice has also provided a novel definition of the term “membership of the household” applicable to all member states.

The Court of Justice held that Article 3(2)(a) of Directive 2004/38/EC must be interpreted as meaning that:

“the concept of ‘any other family members who are members of the household of the Union citizen having the primary right of residence’, mentioned in that provision, refers to persons who have a relationship of dependence with that citizen, based on close and stable personal ties, forged within the same household, in the context of a shared domestic life going beyond a mere temporary cohabitation entered into for reasons of pure convenience.”

The judgment has therefore provided the much needed clarification on the parameters of which  family members of an EU citizen are or are not the “members of a household of an EU citizen”.

The Court’s definition, in requiring a “relationship of dependence” is a narrower interpretation than the ordinary meaning of the words “member of the household”.  The Court has also clarified that a person is not a “member of the household” for the purposes of the Directive by simple virtue of residing under the one roof.

The Court has determined that this interpretation is supported by the “context of the provision”, which is included alongside dependent family members and members of the family requiring the strict personal care of the EU citizen for medical reasons:

The first situation, in which those other family members are dependents of the Union citizen, concerns a situation of financial dependence. The second situation, in which serious health grounds strictly require the personal care of the ‘other family member’ by the Union citizen, expressly refers to a situation of physical dependence. In that context, the situation at issue in the main proceedings – in which the other family member is a member of the household of the Union citizen – must be understood as also covering a situation of dependence, based this time on the existence of close and stable personal ties between those two persons.

An applicant must therefore be able to evidence a situation of dependence arising from close and stable personal ties between themselves and the EU citizen with whom they share a “domestic life”.

The Court goes on to clarify: However, it cannot be required that those ties be such that the Union citizen would refrain from exercising his freedom of movement if that other member of his family could not accompany or join him in the host Member State.

The Court also appears to answer another important question that was not specifically referred to it in confirming that time spent as members of the same household before acquisition of EU citizenship by one of the family members is also relevant in considering whether the applicant is a member of the household of the EU citizen. This is a very interesting aspect to the judgment as it clarifies that family circumstances prior to one of the parties becoming an EU citizen can be taken into account in determining whether an applicant is a beneficiary of the Directive. At paragraph 29 the Court concludes :

The duration of the domestic life shared by the Union citizen and the other family member concerned is also an important factor to be taken into consideration in assessing whether there are stable personal ties between them. It must be possible to determine that duration irrespective of the date on which Union citizenship was acquired. It follows from point (a) of the first subparagraph of Article 3(2) of Directive 2004/38, interpreted in the light of recital 6 thereof, that, in order to assess the stability of the personal ties linking those two individuals, it is necessary to take into account not only the period subsequent to the acquisition of Union citizenship, but also the period prior to this.

This is a very important and long-awaited judgment, and it has set a significant precedent for EU free movement law.

The definition provided by the Court is clear and has provided EU member states with substantial clarity on the meaning of “member of the household”. Until now, the parameters around membership of the same household were very unclear, with applicants arguing for a wide interpretation and the State applying a very narrow interpretation.

This new legal definition provides a basis for a reasonable and balanced approach by Member States in the assessment of the free movement rights of EU citizens and their wider family members.

This Judgment will have far reaching implications beyond the applicants in the proceedings and the High Court holding list, but also all those who have applied for EU residence cards not only Ireland, but across the EU, on the basis of being the member of the household of an EU national.

We wish to extend our warmest congratulations to our clients who have waited many years for this ruling today.

The judgement can be read in full here.

RECOMMENCEMENT OF CITIZENSHIP CEREMONIES

The first citizenship ceremony since early 2020 was recently held on the 20th June 2022 in Killarney, County Kerry.

The in-person ceremonies were postponed for over two years due to Covid-19 restrictions.

The ceremonies were temporarily replaced with the signing of a declaration of fidelity to the State.

Berkeley Solicitors wishes to congratulate all those who have recently received their Irish Citizenship and we welcome the return of the citizenship ceremonies which allows the recipients to celebrate this occasion.

If you or a family member has any queries regarding your immigration status please do not hesitate to contact us.

DEPARTMENT OF JUSTICE PUBLISHES “NOTICE FOR EMPLOYERS- MAY 2022”

On 23rd May 2022, the Department of Justice published on their website a “Notice for Employers- May 2022”

The notice relates to the Covid-19 temporary extensions of immigration permissions set to expire on the 31st May 2022. This temporary permission extension covers persons who have had their permission extended by any of the previous eight temporary extensions since March 2020. You can find our previous blog post regarding this extension here.

The Department of Justice has announced that there are no plans to issue an extension beyond the 31st May 2022 but states that those covered by the extension are entitled to remain, reside and work in the State if their permission previously granted permitted them to do so.

We submit that the notice of the 23rd May 2022 is problematic for a number of reasons.

A non-EEA national is required under Section 5 of the Immigration Act 2004 to hold a permission from the Minister to reside in the State. Immigration permission is generally held by an individual by virtue of a permission letter from the Minister for Justice accompanied by a certificate of registration in the form of an IRP card. In some instances, a person does not hold a permission letter and the permission comes directly from the registration certificate (IRP card).

By virtue of Section 9 of the Immigration Act 2004 Non-EEA nationals are also required to register their immigration permission and the Minister is obliged to facilitate this registration.

In many instances, persons whose permission will expire on 31st May 2022 do not have a current permission letter and are not registered as they have been relying or have had to rely on the Minister’s Covid 19 extensions of permission and therefore they will not be the holder of a valid immigration permission in the State from 31st May 2022 onwards.

The Minister’s notice further states: those covered by the extension are entitled to remain, reside and work in the State if their permission previously granted permitted them to do so..

…If your employee’s IRP card has expired and they are unable to obtain a valid registration card by 31 May 2022, they are still legally permitted to remain in the State provided they show proof that they have applied to renew their registration and are waiting for it to be processed.

We submit that this notice is not sufficient to deal with the major issue that a large number of persons are in fact going to fall undocumented on 31st May 2022 as they will now be without either a permission letter or an IRP card.

We would argue that all non-EEA nationals should be provided with a permission letter and or an IRP card to evidence their residence permission in the State and that persons should not be required to rely on this notice only as evidence of their legal residence. We submit that the Minister should extend the covid 19 extension of permission until the registration office is in a position to issue IRP cards in a timely and efficient manner.

The notice itself recognises the delay in the processing of registration applications and issuance of IRP cards:

“Please note that, in relation to renewals in the Dublin area, ISD is experiencing a very large volume of applications. The current processing time to renew a permission is 10 weeks. It can then take a further two weeks to receive a new IRP card.

We submit that the Minister is not complying with her obligations under Section 9 of the Immigration act 2004 in publishing a general notice rather than facilitating registrations and issuing IRP cards as required. We submit that the Minister should at minimum clarify that all permissions will be backdated to the date of application for renewal/ registration.

The notice has directed that those who hold employment permits must check with employment permits division of the Department of Enterprise, Trade and Employment regarding the issuing of a new or renewed employment permit.

It appears that the Minister’s notice on the ISD webpage is also at odds with the published policy on the website of the Department of Enterprise, Trade and Employment’s website which states:

“An employment permit is not a Residence Permission. In order to be lawfully resident in the State, it is a requirement that all non-EEA nationals in possession of an employment permit must register with the Garda National Immigration Bureau. It is in the best interest of the persons concerned to register as soon as possible following arrival. Delay in registering with Garda National Immigration Bureau could affect applications in the granting of long-term residency and/or citizenship. Immigration permission to remain should, where applicable, be renewed at least one month before the expiry date in order to avoid unlawful presence in the State.”

The current position is of particular concern to visas required nationals. Non-EEA nationals resident in Ireland are required to produce a valid IRP card to re-enter the State after travel. This means that those who are unable to secure an IRP card before the 31st May 2022 will be unable to leave the State until they have acquired a renewed IRP card. There is currently no system for processing re-entry visas for adults in the State since it was abolished in 2019 and therefore this would not be an alternative avenue visa required nationals could pursue should they be required to leave the State.   We submit that if the Minister is not in a position to issue IRP cards in a timely manner the re-entry visa system should now be re-opened to persons in this position.

We submit that the current position the Minister has adopted will also negatively impact those who are intending to apply for naturalisation.  A person’s reckonable residence is calculated from their permission letter and/or the date of their registration as reflected on their IRP card, in absence of either of these documents it appears affected persons are now set to lose out on reckonable residence for the period of time it takes to obtain their renewed IRP card. We expect this issue will cause complications for persons trying to meet the inflexible statutory requirements of reckonable residency under Section 16A of the Irish Nationality and Citizenship Act 1956 (as amended) which requires a 12 month period of continuous residence prior to the date of application. Thus a gap in registration will prevent many non nationals from applying for naturalization within the following 12 month period. We submit this is not an acceptable position.

 

Berkeley Solicitors has written to the Minister to outline our concerns.  We have submitted that the Covid-19 extension of permissions should be continued until the backlog in registrations is dealt with or that at a minimum the Minister’s notice should be amended to address the above issues, to include:

  • The immigration permission of any individual who is covered by notice is extended up until the date they receive their renewed IRP card;
  • The immigration permission of any individual who is covered by notice will be backdated to the date of application for registration and their IRP card will reflect this;
  • The re-entry visa system will be reopened for visa required nationals who need to travel whilst their registration application is being processed;
  • Persons covered by this notice should receive a letter/ confirmation their immigration permission from 31st May 2022 until the issuance of their new IRP card is reckonable for an application for naturalization.

The full notice can be found here:

ELIGIBILITY FOR TEMPORARY PROTECTION

On the 9th March 2022, the Department of Justice published an information page on Temporary Protection for persons fleeing the conflict in Ukraine. It is indicated that the categories of persons eligible for temporary protection are as follows:

  • Ukrainian nationals who were residing in Ukraine before 24 February 2022;
  • Nationals of a third country (other than Ukraine) or stateless persons who would have benefited from international protection (e.g. Refugee status) or an equivalent national protection status in Ukraine and have been residing there before 24 February 2022
  • Family members of persons covered by a) and b) where the family already existed in Ukraine at the time of events leading to the mass influx prior to 24 February.
  • Those family members include a spouse or partner, unmarried minor children of either of them, and their other close dependent family relatives who have been living with them as part of the family unit.

 

It will also apply to people who had been residing in Ukraine before 24 February 2022 with a permanent Ukrainian residence permit, who cannot safely return to their country of origin.

Temporary protection may also be extended to other people who were legally residing in Ukraine who cannot safely return to their country of origin, including nationals from non-EU countries or stateless persons. People who can safely return to their country of origin will be assisted to do so.

Persons who are eligible for temporary protection will obtain a letter on arrival at Dublin Airport confirming this. The letter will give the holder permission to reside for twelve months, access to the labour market, plus access to public services.

Persons who are eligible for temporary protection and arrived in the State between the 24th February 2022 and the 9th March 2022 will not have received the temporary protection letter. The Department is making urgent arrangements to provide the temporary protection letter to this group of people.

The information notice does not address the situation of Ukrainians who arrived in the State prior to the 24th February 2022. Our office is making enquiries regarding the Department’s position on accepting applications for temporary protection from this category of persons.

If you are in this category, you should seek legal advice on your options, including the option  of submitting an application for international protection.

 

 

Please review the information note in full at the following link:

https://www.irishimmigration.ie/information-on-temporary-protection-for-people-fleeing-the-conflict-in-ukraine/

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

 

MINISTER FOR JUSTICE ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS TO 31ST MAY 2022

On the 17th December 2021, Minister for Justice, Helen McEntee announced a further extension of international protection and immigration permissions. The extension has been set to 31st May 2022. Therefore, any person in the State who’s immigration permission was due to expire between 15th January 2022 and 31st May 2022 will automatically have permission to reside in the State up to 31st May 2022. This temporary permission extension also covers persons who have had their permission extended by any of the previous eight temporary extensions since March 2020.

 

Every person that qualifies for this temporary permission extension should either register or renew their permission before 31st May 2022, in order to confirm that they continue to have valid permission to reside in the State after this date.

 

In its statement announcing the new extension, the Department of Justice assured that anyone who is entitled to a new IRP card may travel during the Christmas period up to 15th January 2022, using their current expired IRP card. However, adults who plan to travel after 15th January 2022 that have not yet received their new IRP card must secure a re-entry visa in Ireland before travelling or in an overseas visa office before returning. Minors travelling with legally resident parent/s or guardian/s will not need a re-entry visa, per the current  suspension on this requirement that will be extended to 31st May 2022.

 

The Burgh Quay registration office in Dublin is open for appointments and those based in Dublin can renew their permission online at https://inisonline.jahs.ie. Renewals for persons located outside of Dublin are processed by the Garda National Immigration Bureau.

 

The Department has announced that they will be launching a new Freephone telephone booking system in January to assist with the high demand for first time registration appointments.

 

The full statement announcing the permission extension can be found on the Department of Justice’s website here.

EXTENSION OF 5-YEAR MULTI-ENTRY SHORT-STAY VISA OPTION TO ALL VISA REQUIRED COUNTRIES

UPDATED VISA REQUIREMENTS FOR PERSONS TRAVELLING FROM DESIGNATED COUNTRIES

We refer to our previous blogs in relation to the Minister’s notice of 26th November relating to the new immigration requirements for nationals of South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe

This notice has again been updated on 6th December 2021 by the Department of Justice.

The notice is entitled:

Visa Requirements for Persons Travelling from South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe (or persons who have been in those countries in the last 14 days).

On 28th and 30th November 2021 the Minister enacted the following Regulations:

HEALTH ACT 1947 (SECTION 31A – TEMPORARY RESTRICTIONS) (COVID-19) (RESTRICTIONS UPON TRAVEL TO THE STATE FROM CERTAIN STATES) (NO. 5) (AMENDMENT) (NO. 6) REGULATIONS 2021

A full version of the Regulations is available here:

https://www.irishstatutebook.ie/eli/2021/si/639/made/en/pdf

The updated notice outlines that if you are visa or non-visa  required national and you are travelling to Ireland from South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe you will be required to comply with the restrictions on travel provided for in these Regulations.

It is stated that visa applications will only be accepted and processed where an applicant comes within one of the outlined exemptions:

  • 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
  • Is a family member of an Irish citizen
  • 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

The notice further elaborates that even where an applicant meets the above exceptions, travel should be limited to “essential journeys only”.

The Minister confirms that the Regulations only apply to persons travelling from South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe.

It is confirmed that if you have not been in one of the above countries in the previous 14 days  prior to arrival in the State the Regulations do not apply to you.

Nationals of South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe remain visa required persons. Persons who hold nationality of the above countries, who have not been in above  countries for the previous 14 days can apply for a visa in the normal way and are not subject to the narrow exemptions above.

It should be noted that the Minister has a policy to seek proof of lawful residence in the country from which a visa required national applies for their visa to Ireland. Our experience has been that the Relevant Irish Embassy/Visa Office will seek evidence of lawful residence permission from the applicant in the Country from which they have applied for their visa.

The full update of 6th December  can be found below:

https://www.irishimmigration.ie/covid-19-visa-arrangements/

This notice is complex and the Immigration procedures for nationals of South Africa, Namibia, Botswana, Lesotho, Eswatini, Mozambique and Zimbabwe have now been amended at least three times within a period of 2 weeks.

This highlights the continued uncertainty and ongoing challenges of the pandemic.  We understand the distress and worry this will have caused to those affected.

If this notice affects you or your family, please do not hesitate to contact Berkeley Solicitors to discuss your case.

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.

 

MINISTER FOR JUSTICE ANNOUNCES NEW REGULARISATION SCHEME FOR LONG-TERM UNDOCUMENTED MIGRANTS

On 3rd December 2021, the Minister for Justice announced a new scheme which will enable many undocumented migrants to apply to regularise their residency status.

The scheme will open for online applications in January 2022 and applications will be accepted for six months.

The scheme will include those who do not have a current permission to reside in Ireland, whether they arrived illegally or whether their permission expired or was withdrawn years ago.

In order to be eligible, applicants must have been undocumented for a period of four years, or three years in the case of those with dependent children.

According to a briefing session with Department of Justice officials held on 2nd December  2021, a short period of absence from the State in the undocumented period for those who would otherwise qualify will be disregarded. This will be limited to a max of 60 days absence from the State and the documented period arising from the short-term tourist permission (up to 90 days).

Applicants must meet standards regarding good character, though having convictions for minor offences will not, of itself, result in disqualification.

There will be no requirement for applicants to demonstrate that they would not be a financial burden on the State, as the scheme is aimed at those who may be economically and socially marginalised as a result of their undocumented status.

The scheme will also be open to individuals with expired student permission, those who have been issued with a section 3 notice under the Immigration Act 1999, and those who have received deportation orders.

The scheme is also expected to include international protection applicants who have been in the asylum process for a minimum of 2 years, though full details on this are yet to be announced.

There will be an application fee of €700 for family unit applications, while a fee of €550 will apply to individuals’ applications. Children up to 23 years, living with their parent(s), can be included in a family unit application.

Successful applicants will be granted residence permission which will allow access to the labour market and will provide a pathway to Irish citizenship.

Announcing the scheme, the Minister for Justice Helen McEntee stated:

“I’m delighted that the Government has approved my proposal for this momentous, once-in-a-generation scheme.

Given that those who will benefit from this scheme currently live in the shadows, it is difficult to say how many will be eligible, but we are opening this scheme for six months from January to allow people come forward and regularise their status.

It will bring some much-needed certainty and peace of mind to thousands of people who are already living here and making a valuable contribution to our society and the economy, many of whom may be very vulnerable due to their current immigration circumstances.”

As a result, they may be reluctant to seek medical assistance when ill, assistance from An Garda Síochána when they are the victim of a crime, or a range of other supports designed to assist vulnerable people in their times of need.”

I believe that in opening this scheme, we are demonstrating the same goodwill and generosity of spirit that we ask is shown to the countless Irish people who left this island to build their lives elsewhere.”

The full announcement can be read here.

Studies suggest that there are 17,000 undocumented persons in the State, including up to 3,000 children.

Berkeley Solicitors welcomes the announcement of this scheme, which will allow many undocumented migrants to come forward and apply to regularise their status.

BERKELEY SOLICITORS VOTED ONE OF IRELAND’S BEST LAW FIRMS 2022

Berkeley Solicitors are delighted to have been voted one of the best law firms in Ireland for 2022 in the category of Human Rights and Immigration.

The list of Ireland’s best law firms for 2022 was published by the Irish Independent following a peer-to-peer survey of more than 1000 legal professionals.

The full list of firms can be found at:

https://www.independent.ie/business/irelands-best-law-firms/irelands-best-law-firms-2022-full-list-41020380.html

Berkeley solicitors would like to thank our clients and colleagues for their support and we look forward to working with you in 2022.