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A QUESTION OF THE LEGALITY OF THE USE OF DOMESTIC DEPORTATION LAW FOR FAMILY MEMBERS OF EU CITIZENS – CHENCHOOLIAH

Regulation 20 to Regulation 22 of the European Communities (Free Movement of Persons) Regulations 2015 implement the Minister’s powers for removal in accordance with Council Directive 2004/38/EC.

The Regulations direct that the Minister may make a removal order against a Union citizen or their family member where the person is no longer entitled to be in the State in accordance with the 2015 Regulations.

However, in practice, the Minister has been invoking the domestic deportation procedure under Section 3 of the Immigration Act 1999 as amended in the circumstances of family members who fall outside the remit of the 2015 Regulations.

The Minister’s approach to utilise the domestic deportation process for family members who have fallen outside the remit of the Regulations, has the effect that the proposed deportee looses certain rights and entitlements available under the 2015 Regulations. For example, a deportation order under domestic law is indefinite in duration while a removal order under the 2015 Regulations expires once the removal has been carried out.

The Minister’s actions have been challenged in a number of judicial review proceedings, the lead of which is the case of Nalini Chenchooliah v the Minister for Justice and Equality, Case C-94/18. In this case, a preliminary reference was made from the Irish High Court to the Court of Justice to seek clarification on the State’s entitlement to use domestic deportation legislation over the removal procedures envisaged by Directive 2004/38.

The questions referred were as follows:

Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive 2004/38/EC has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty Rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

If the answer to the above question is that the expulsion must be made pursuant to the provisions of the Directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?

Ms Chenchooliah argued that as a person who at one time, on account of her marriage to an EU citizen, she previously had a temporary right of residence under Article 6 of Directive 2004/38, and therefore she continues to fall within the scope of that directive and can therefore be expelled from the territory of the host Member State only in compliance with the rules and safeguards provided for in that directive.
It is interesting to note the opinion of Advocate General Szpunar of the 21st May 2019, in in which the Advocate General took the same position as Ms Chenchooliah;

“Therefore, in the light of the foregoing considerations, I am of the view that, since the discontinuation or expiry of a right of residence forms part of the final stage of the exercise of freedom of movement, the expulsion from the territory of the host Member State of a third-country national spouse of a Union citizen continues to fall within the scope of Directive 2004/38, in particular Article 15 thereof, where that citizen has ceased to exercise his freedom of movement in the host Member State by returning to the Member State of which he is a national.”

The case was heard by the Court of Justice on the 15th January 2019 and judgement is currently awaited.

Should the Court of Justice concur with the Advocate General and find in favour of Ms Chenchooliah’s position, it would be appear that many deportation orders issued by the Minister in recent years will be unlawful and in breach of the EU treaty rights law.

SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

RE-ENTRY VISAS NOW ABOLISHED FOR ADULT HOLDERS OF IRP/GNIB CARDS

As of 13th May 2019, visa required nationals who hold a valid IRP/GNIB card will no longer need a re-entry visa to travel back to Ireland. An individual will only need to be able to show their IRP/GNIB card and their passport or travel document to airline staff and immigration authorities as evidence of their right to travel to the State.

With this change Ireland has come into line with other EU Member States who rely similarly on residence permits rather than requiring re-entry visas from those holding immigration permission in the State.

This change has been long requested and will benefit an estimated 40,000 persons each year, taking away the need for them to pay a re-entry visa fee and submit their passport or travel document to the Irish Naturalisation and Immigration Service while awaiting the outcome of their application, which could take in and around five weeks to process.

It is important to note however that as minors under the age of 16 years are not issued with an IRP/GNIB card their parent or guardian will still need to apply for a re-entry visa for them to allow them to travel to and from the State. While all other visas must be applied for from outside of the State, an application for a re-entry visa for a minor can be made from within the State.

Further worth highlighting are the Irish Naturalisation and Immigration Service’s instructions that in light of the delays in securing an appointment to register immigration permission at the Burgh Quay Registration Office, if living in Dublin, and the further two week period it may take to receive one’s IRP card, it is advised that visa required nationals intending to travel to and from the State in the first four months of their stay should apply for a multiple entry visa, which will allow for them to undertake travel in the interim period before their IRP card is issued to them.

For further information on these changes and their implications please see the Irish Naturalisation and Immigration Service website here.

WELCOME CHANGES TO IMMIGRATION PERMISSION FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The purpose of the Critical Skills Employment Permit Scheme is to attract highly skilled people to Ireland in key areas where skills shortages have been identified, mainly in the IT Sector. The Irish Naturalisation and Immigration Service (INIS) have recently announced an update on revised immigration arrangements for family members, spouses and partners of the holders of Critical Skills Employment Permits (CSEP).
The previous immigration requirement was that family members, spouses and partners of Critical Skills Employment Permits obtain their own Dependant /Partner/ Spouse Employment Permit from the Department of Business, Enterprise and Innovation (DBEI). Although more favourable conditions applied to the grant of these employment permits, this still amounted to an obstacle to access to the labour market and often delayed or hindered a person’s ability to work in the State.

From 6th March 2019, the INIS will now grant eligible spouses and de facto partners of CSEP holders’ permission to reside in the State on Stamp 1G Conditions, without the need to obtain a work permit from DBEI.

This change will affect the spouses and partners of non- EEA national CSEP holders in terms of their permissions in the State and their access to the labour market. In addition, the Policy change also applies to the partners and spouses of Researchers in the State on Hosting Agreements.

This policy change means that partners and spouses of CSEP holders no longer need to apply for and hold their own employment permit in order to work in the State. They will be eligible to work in the State on the basis of their own Stamp 1G permission.

The new procedure allows spouses or partners of CSEP holders currently resident in the State, to attend the INIS registration office at Burgh Quay. They will be issued a new Irish Residence Permit (IRP) on Stamp 1G. This will allow the registered person to access the labour market without acquiring a work permit.

There are no charges for those that present a valid IRP however if the current IRP is due for renewal, the normal registration of €300 will apply. If you wish to register under this new policy and you live outside of Dublin, you must attend your local Garda Registration Office.
In addition to this change in policy, from April 1st of 2019, INIS have also confirmed that there will be a new pre clearance procedure in place for non- EEA de facto partners and spouses of CSEP holders. Both visa and non-visa required nationals will now be required to seek permission to reside in the State as spouse or partner of a CSEP holder before arriving in the State. This new procedure is intended to reduce processing times and provide clarity with the new Stamp 1G conditions. The INIS have previously indicated their intention to operate such a pre clearance procedure in respect of many other family reunification applications from non-visa required persons. It will be interesting to see if this pre clearance procedure in respect of partners and spouses of CSEP holders is rolled out to other categories of family reunification.
Ultimately this new policy is intended to provide clearer conditions and more accessibility to the labour market for spouses and partners of CSEP holders. While there is now a necessity for non-EEA spouses and partners to go through a pre clearance procedure before entering the State, this has been introduced with the intention of a more streamlined application and registration process overall in respect of CSEP holder’s family members.

This change in policy is to be welcomed, it is our view that any restrictions on a person’s right to work and access the labour market should be removed from the Irish Immigration system. The Reform Stamp 3 campaign should be congratulated for their work in campaigning for this change.

Our office is currently working on many applications for change in immigration permission from Stamp 3 to Stamp 4 to allow our clients the right to work and earn a livelihood.

IMPORTANT UPDATE ON BREXIT AND THE RIGHTS OF NON-EU/EEA FAMILY MEMBERS OF BRITISH CITIZENS

In the face of the uncertainty and worry facing many in light of the ongoing Brexit deliberations, the Department of Justice has, on the 29th of March 2019, published a communication aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen, in order to provide an update on the approach they intend to take in the event that the UK leaves the EU in a so called ‘no-deal’ scenario.

The communication defines no-deal as referring to circumstances where there is no further extension of the negotiating period and the UK does not ratify the Withdrawal Agreement before the 12th April 2019, in which case it states there will be no transition period and EU law will cease to apply to and in the UK as of 11pm (midnight CET) on that day.

Alternatively, if a deal is reached, according to the Department’s communication, the provisions of the Withdrawal Agreement on Citizens Rights will apply and EU law will only cease to apply in and to the UK following the transition period of 21 months, up until the 1st of January 2021.

The information note addresses two groups of persons in contemplation of a no-deal Brexit; those with an EU treaty rights application submitted and pending and those holding a valid Stamp 4 EUFam residence card on the 12th of April 2019.

With respect to those who have an application that is still being processed, the information note provides no further information other than to state that such persons are not required to take any action at this time.

For those who are currently holding a valid Stamp 4 EUFam residence card, the information note seeks to reassure that you do not need to worry about losing your right to residence in the State in the case of a no-deal scenario.

It states that, although in a no-deal scenario EU law, in particular the provisions of the European Communities (Free Movement of Persons) Regulations 2015, will no longer apply to you, the Irish government is currently putting in place arrangements to allow a transfer under domestic immigration provisions, which will provide for your continued residence in the State.

It is further stated that the aim of the arrangements being put in place is that you will retain, as far as possible, similar rights to those you have held as the holder of a Stamp 4 EU Fam residence card, including with regard to access to the labour market.

The Department states that they are currently in the process of putting in place a communication strategy that, in the case of a no-deal scenario, will include directly contacting individuals who will be affected by the above.

Further, addressing the matter of UK nationals coming to the State after the 12th of April 2019, if no deal has been made and there is no extension of the negotiating time, the Department provides no information other than to state that they will be issuing further updates on their website in this regard.

The note is also silent in relation to family members of British/UK citizens who have applications for entry visas to the State pending with Irish Embassies/ Visa Offices abroad and the INIS visa office, Dublin. It is unclear as to what the status of such applications will be in the event of a no deal scenario.

If you think you or your family members may be affected by Brexit it is advisable to regularly check the Department’s website, which they state will be updated as developments continue. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

The full text of the information note can be found here. (http://www.inis.gov.ie/en/INIS/Pages/information-note-on-non-eea-family-member-of-uk-citizens-seeking-eu-treaty-rights )

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

SPECIAL SCHEME FOR NON-EEA NATIONALS WHO HELD A STUDENT PERMISSION IN THE STATE DURING THE PERIOD 1 JANUARY 2005 TO 31 DECEMBER 2010

The INIS has launched the new scheme for non-EEA nationals who held a student permission in the State during the period 1 January 2005 and 31 December 2010 to apply for permission to remain.This scheme applies to non-EEA persons who commenced their presence in the State lawfully under a student permission with a limited right to work and who maintained that lawful presence for at least two years.

IMMIGRATION IN IRELAND ANNUAL REVIEW 2017

The Department of Justice and Equality’s annual review of Immigration in Ireland for 2017 provides a detailed look at changes made throughout the year to ensure that immigration law in Ireland is relevant, current and in line with EU legislation. Issues which were dealt with in the immigration in Ireland annual review included migration to Ireland, citizenship, common travel area, international protection, and refugees and asylum seekers.

The 2017 review confirms that due to the Ireland’s growing economy and positive international reputation this country is attractive to migrants who wish to work, study or settle here. Our rapidly growing immigration numbers are evidence of this. Visa applications have also increased dramatically and the number of people from non-EU countries legally living here increased by 13,000 between 2016 and 2017.

In 2017, 8,199 people became Irish citizens. The citizenship ceremonies took place the University of Limerick and the Convention Centre in Dublin. Since the citizenship ceremonies began in 2011, over 110,000 people have received their citizenship certificates at the ceremonies. Another topic discussed at the immigration in Ireland annual review was regarding the common travel area. Keeping the common travel area with the UK is one of the key Brexit priorities of Government, and this is reflected in the EU-UK joint report on the progress during Phase 1 of the Brexit negotiations. During the negotiations, it was recognised that Ireland and the UK may continue to make arrangements relating to the movement of people within the CTA and that both countries will fully respect the rights of people under EU law.

International protection is a topic that immigration law centres around. The International protection Act 2015 came into effect on the 31st of December 2016. The Act simplifies and streamlines existing international protection arrangements in Ireland. Applicants will be able to get a final decision on their protection application in a more straightforward and timely fashion. Two key developments in 2017 as a result of the Act were the establishment of the International Protection Office and the International Protection Appeals Tribunal. The IPO investigates applications for international protection. The IPAT hears appeals on decisions by the IPO. As part of Government response to the migration crisis, the Irish Refugee Protection Programme accepted 755 people into the country in 2017. Ireland does what it can to provide a safe haven for up to 4,000 under EU Relocation and Resettlement programmes. A significant number of people will qualify under family reunification.

In June 2017, the third and final report on the progress made on improving the protection process was published. The report showed that 133 for 173 recommendations have been fully implemented and 36 recommendations are in the process of being implemented or are partially implemented. This means 98% of the recommendations have been fully or partially implemented. The average length of time spent in State-provided residency centres has been reduced. In 2015, the average was 38 months. At the end of 2017, it was 23 months. This is expected to get shorter as the provisions in the Internationals Protection Act take effect.

At Berkeley Solicitors we support an effective, fair and transparent immigration system.

Berkeley Solicitors