Tag Archive for: Immigration in Ireland

UPDATE ON UKRAINIAN NATIONALS TRAVELLING TO IRELAND

UPDATE ON UKRAINIAN NATIONALS TRAVELLING TO IRELAND

The Department of Justice recently announced that from 5th June 2024, temporary measures which allowed Ukrainian nationals to travel to Ireland without a valid biometric passport ceased to be in effect. In accordance with Section 4 of the Immigration Act 2004, all third country nationals, including Ukrainians, must possess a valid biometric passport.

Ireland temporarily suspended the requirement for a biometric passport for Ukrainian nationals in 2022 as part of a wide-ranging emergency response to the full-scale invasion of Ukraine by Russia. Under this suspension, Ukrainian nationals seeking to enter the State could rely upon alternative documentation as proof of their nationality including expired biometric passports or internal passports.

This temporary suspension supported a swift response to the crisis and ensured that those who could not access or renew their travel documents could still flee to safety. However, as the situation has evolved since the outbreak of the war, the Department of Justice is seeking to move to a more sustainable response.

This announcement does not impact the temporary protection status of Ukrainian nationals already in Ireland if they do not have a valid biometric passport. However, it is important for Ukrainian nationals to be aware of this requirement if making any plans to temporarily leave the country as they will require a valid biometric passport to re-enter Ireland.

The full announcement can be found here:

Important Information for Ukrainian nationals – Immigration Service Delivery (irishimmigration.ie)

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

UPDATE REGARDING ELIGIBLE SPOUSES AND PARTNERS OF GENERAL EMPLOYMENT PERMIT AND INTRA-COMPANY TRANSFEREE IRISH EMPLOYMENT PERMIT HOLDERS

NOTICE ON NON-EEA NATIONALS AWAITING AN EU NATIONAL PASSPORT

The Immigration Service Delivery have published a notice in response queries of Non-EEA nationals who await the issuance of an EU Passport, of their status and obligations in the State.

The notice has clarified that Non-EEA nationals, who are in receipt of court documents stating that they are citizens of an EU country, must hold a valid immigration permission to remain legally resident in the State.

Individuals in this position therefore must ensure to contact their national embassy to keep their Irish immigration permissions up to date while they await their EU passport. Court documents stating that they are citizens of an EU country will not suffice in proving their legal residency in the interim.

Individuals must also ensure to comply with the obligations of their immigration permissions whilst they await the issuance of their EU passport.

Please see the below link for further details:

 

https://www.irishimmigration.ie/non-eea-national-awaiting-an-eu-national-passport/

 

Berkeley Solicitors are available to provide support and assistance to any residence applicants.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

NEW ACT INTRODUCING SIGNIFICANT CHANGES TO IMMIGRATION AND CITIZENSHIP COMMENCED

The Minister for Justice Helen McEntee has commenced the majority of the provisions of the Courts and Civil Law (Miscellaneous Provisions) Act 2023.
This Act has introduced significant amendments to immigration, citizenship and naturalisation law in Ireland, to take effect from 31st July 2023. The major changes are outlined below:
The Act contains amendments to a number of provisions of the Irish Nationality and Citizenship Acts.
Children born in the State who are not entitled to Irish citizenship by birth, will now be eligible to apply for naturalisation after three years of reckonable residency in the State, reduced from five years……

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Berkeley Solicitors would like to congratulate our clients who have received a positive judgement from the High Court today in their Judicial review proceedings.

The applicant, a minor Somali citizen, issued proceedings through her aunt and next friend challenging a decision of the Minister for Justice to refuse the her visa appeal to join her aunt and family in Ireland following the death of both her parents in Somalia.

We argued on behalf of our clients that the Minister acted in breach of fair procedures on a number of grounds. In refusing to grant the visa, it was submitted that the Minister failed to fully consider the best interests of the applicant in light of her particularly vulnerable position as a 14-year-old orphan residing outside her country of origin, without familial support.

It was submitted by the Respondent that the Applicant had failed to show sufficient evidence of a familial link between the applicant and the sponsor. Furthermore, it was submitted that the sponsor did not prove that she ‘is, or ever had been, socially or financially dependent on the sponsor’. The Minister also considered that the adoption of the Applicant was not recognisable under Irish law in light of the fact that there is no bilateral treaty in existence between Ireland and Somalia governing adoptions and similarly, that Somalia is not a party to the Hague Convention.

As a result, the Minister held that neither Article 41 of the Constitution nor Article 8 of the ECHR protecting the right to family life were applicable to the Applicant and the sponsor.
In setting aside the decision of the Minister, Mr Justice Barr held that the decision maker erred on a number of grounds in failing to recognise that a 14-year old orphan, ‘without any family support in a very unstable country, was not in an extremely vulnerable position, such that it constituted exceptional circumstances’.

Acknowledging the importance of family reunification in situations where individuals had fled persecution, Justice Barr held the Respondent was wrong in concluding that ‘there was no documentary evidence of familial relationship between the applicant and sponsor’. It was accepted that a number of important documents to this effect had been submitted by the Applicant, including a court order transferring guardianship of the application to the sponsor.

Furthermore, the emphasis placed by the decision maker on the issue of adoption as a basis for refusal, ‘an argument that was never put forward by the applicant, nor was put to her for comment’, was held to have breached the applicants right to fair procedure, rendering the decision ‘fatally flawed’.

Referring to the case of Tanda-Muzinga v France (2260/2010), the following passage was highlighted by the Court:
‘there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union’.

It was highlighted by the Court that this obligation is envisioned under Irish law in s.56 of the International Protection Act, 2015. Similarly, in line with our duties under Article 10.1 of the Convention of the Rights of the Child, that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner’.

Significantly, it was held that the Appeals officer hadn’t sufficiently considered ‘the extremely adverse consequences’ the refusal decision represented for the applicant. As a result, the Court held that the decision clearly constituted ‘exceptional circumstances of a humanitarian nature, which would have justified a departure from the financial requirements of the policy’.
The Judgement will be available on the High Court webpage in the coming days.

Our office wishes to congratulate our clients on this positive development in their case today and would also like to thank our counsel for their dedicated work on this case.

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

RECENT HIGH COURT JUDGEMENT RELATING TO VISA REFUSAL FOR HUSBAND OF IRISH CITIZEN

Justice Phelan of the High Court has recently delivered judgement in the case of S.M and T.A v Minister for Justice [2022] IEHC 611

 

This case involved a long stay visa application made by the husband of an Irish citizen to join his wife in Ireland. The visa application was refused by the Minister and was also refused on appeal.

 

The couple challenged this refusal in the High Court by way of Judicial Review.

 

The couple were unsuccessful in their case before the High Court.

 

The visa application was refused for multiple reasons. The Court found that the Minister had failed in a number of respects in the assessment of the visa application.

 

The Irish Immigration Service Delivery consider visa applications in line with a Policy Document on Non, EEA family reunification, December 2016 (https://www.irishimmigration.ie/wp-content/uploads/2021/04/Policy-document-on-Non-EEA-family-reunification.pdf)  . Under the terms of this policy, Irish citizens are asked to have earned a certain income within the three  years prior to the visa application for their family member. In this case, the Irish citizen sponsor did meet this financial  criteria.

 

Despite this, the Minister found that granting the visa application would likely cost the Irish State money. It was found that the bank balance of the sponsor was low, and this caused this risk. The Court found there had been a lack of fair procedures in respect of the handling of  this aspect of the case. The Irish citizen sponsor in fact had savings but had not provided evidence of same as it was not obvious that they would be required when the financial criteria had been met.

 

The Court also found that the Minister had been incorrect in finding that there had been no explanation with regards to discrepancies on official documents and dates of registration on such documents. The applicant and sponsor had provided explanations. The court found that the correct approach of the Minister  should have been to acknowledge that an explanation had been provided, but could then have assessed if this explanation was to her  satisfaction or not.

 

It was brought to the Court’s attention by the applicants that a previous visa refusal has to be declared going forward and can have a negative impact on a person’s immigration history. The Court considered quashing the decision with this in mind, but ultimately held that there was no unreasonable prejudice to the applicants, as they could re-apply providing the documents that were found to be lacking and with new financial documentation. The Court found that this application would be made on better facts and did not believe there was an unreasonable prejudice to the applicant in having to declare a previous visa refusal.

 

The applicants also brought it to the Court’s attention that the Irish citizen sponsor was pregnant and also the security and safety circumstances in the home country of the sponsor had deteriorated. The Court found that this was not put to the Minister during the application  prior to a decision being made and therefore could not be properly found as a reason to find fault with the decision at this stage.

 

The Court ultimately held that due to the myriad of reasons the application for the visa had been refused, the deficiencies in the decision-making process as specifically  identified by the Court did not amount to the decision being unlawful.

 

The Court held that even if these matters had been handled in the proper way the visa application would still have been refused for other reasons, including a failure to provide specifically requested documents and the quality of some official documentation.

 

The Court stated that a fresh visa application to address these issues was a suitable way forward for the applicants.

 

This judgement highlights the importance of providing all requested documents in a visa application, following all ISD published guidelines in respect of documents and attestation of certificates and providing all relevant information in the visa application.

 

The Judgment also appears to  indicate that were an applicant meets the financial  criteria of the policy document, it would only be fair that an applicant be put on notice that the Minister intends to  refuse the application on those grounds to allow them to address these  concerns prior to decision being made.

 

The full judgment can be found here:

 

https://www.courts.ie/viewer/pdf/fa5fae37-2d5d-4ba3-bd24-ef1099537524/2022_IEHC_611.pdf/pdf#view=fitH

 

Berkeley Solicitors is highly specialised in preparing and submitting join family visas. Please do contact us if you need advice or assistance with such an application.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

RMINISTER FOR JUSTICE ANNOUNCES NEW VISA REQUIREMENTS FOR NATIONALS OF DOMINICA, HONDURAS AND VANUATU, AND VISA WAIVERS FOR CERTAIN DIPLOMATIC PASSPORT HOLDERS

SUBMISSION OF ORIGINAL DOCUMENTS WITH VISA APPLICATIONS

Berkeley Solicitors has been informed from a number of clients that are submitting visa applications via VFS centres that their original documents are not being retained for the processing of their applications.

We have recently received confirmation that VFS staff act on behalf of the Department of Justice in accessing original documents for the purposes of visa applications.

We are advised that staff at the VFS centres assess the Applicant’s original documents for the required attestations and then scan these documents.

We have been advised that the original documents are then handed back to the Applicants and are not passed on to ISD officials for the processing of such applications.

We have been informed that this practice is currently being enacted on a phased bases across Irish visa offices globally.

This is a point of great concern as we understand the ISD requirements require submission of original documents in support of visa applications.

We have always advised our clients that original, attested documents are extremely important for a visa application, and it therefore causes much concern when they are not accepted for the processing of an application.

We request that the policy in respect of providing original documents for visa applications is published on the ISD website so that Applicants are aware of the current procedure.

UPDATE REGARDING ELIGIBLE SPOUSES AND PARTNERS OF GENERAL EMPLOYMENT PERMIT AND INTRA-COMPANY TRANSFEREE IRISH EMPLOYMENT PERMIT HOLDERS

BERKELEY SOLICITORS VOTED ONE OF IRELAND’S BEST LAW FIRMS 2023

The Irish Independent published the list of Ireland’s Best Law Firms 2023 on the 2nd October 2022. The list was compiled following a peer-to-peer survey of more than 1,000 legal professionals.

Berkeley Solicitors are delighted to have been voted one the best law firms in Ireland for 2023. This is the second year in a row Berkeley Solicitors have been included in the list, in the category of Human Rights and Immigration.

Berkeley Solicitors would like to express our gratitude for our clients’ and colleagues’ continued support. We look forward to working with you and continuing our relationships into 2023.

The full list of Ireland’s Best Law Firms 2023 can be found here.

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.

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

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.