Tag Archive for: Immigration in Ireland

IMMIGRATION APPLICATIONS CAN BE SUBMITTED ELECTRONICALLY UNTIL 20TH MAY 2020

We are happy to see that INIS has issued a new notice on the 15th April 2020 confirming that EU Treaty Rights and Domestic applications can be submitted by email until the 20th May 2020 as a temporary measure.
The notice confirms as follows:
As part of combined efforts to adhere to the Government’s strategy to slow down the spread of the COVID-19 virus and to ensure customer safety, we have taken the decision, as a temporary measure between now and the 20th May 2020, to allow EU Treaty Rights and Domestic applications to be submitted by email together with scanned copies of supporting documentation. EU Treaty Rights will require the original application to be submitted by post in due course

The full notice can be read at the below link:
http://www.inis.gov.ie/
Our office continues to act for many clients who have pending immigration applications, and we are continuing to liaise with INIS on behalf of our clients as normal.
It is good news to see that any clients who wish to commence new immigration application can now do so electronically, without the requirement to submit original documents at this time.
Please contact our office with any queries regarding commencing new applications.

Berkeley Solicitors

UK GOVERNMENT PUBLISHES DRAFT IMMIGRATION BILL GUARANTEEING RIGHT OF IRISH CITIZENS TO LIVE AND WORK IN THE UK POST BREXIT

Last month, the UK Government published the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which provides the legislative basis for ending EU free movement arrangements in the UK once the Brexit transition period has expired.

The Bill aims to retain the Common Travel Area rights of Irish citizens to live and work in the UK without restrictions. Section 2 of the Bill provides that “an Irish citizen does not require leave to enter or remain in the United Kingdom”. Exceptions to this include the possibility to deport Irish citizens for serious criminal offences.

The British Immigration Minister Kevin Foster has stated that the Bill “provides certainty and clarity for Irish citizens on their rights to enter and live in the UK, reflecting the reciprocal arrangements for British citizens in Ireland.”

In practice, the Bill will ensure that there is no change to free movement between Ireland and the UK for Irish citizens. This follows repeated assurances from both the Irish and UK governments that the Common Travel Area, which has been in place since 1922, will remain valid post-Brexit.

However, in its current form, the Bill does not provide Irish citizens with any right to have family members reside with them, unlike EU free movement law.

Other EU citizens may require visas to enter and reside in the UK from as early as 2021. The UK Home Office has announced its intention to introduce a points-based immigration system for both EU and non-EU citizens.

At present, these proposals are at a very early stage and are subject to change as the Bill moves through the legislative process. Members of Parliament are scheduled to consider the Bill for a second reading on Tuesday 21 April 2020.

The full text of the Bill can be found here.

NOTICE REGARDING AUTOMATIC EXTENSIONS OF RESIDENCE PERMISSION

NOTICE REGARDING AUTOMATIC EXTENSIONS OF RESIDENCE PERMISSIONS

The Department has published an important notice to all persons in the State with a current valid permission due to expire from 20/3/2020 to 20/5/2020, whether pursuant to domestic law or powers of the Minister, or Directive 2004/38/EC (Free Movement Directive). The notice confirms that the residence permissions will be automatically renewed for a two month period, on the same basis as the existing permission and with the same condition.

This includes persons in the State as visitors, who have applied for an alternative residence permission and have not yet received a decision – i.e. their visitors permission will be extended for two months.

The notice requires no action from the non national, and confirms the INIS registration offices are temporarily closed. The normal requirements to register residence permission will not arise until the registration offices re-open or alternative arrangements are put in place.

It is confirmed that a non national can present evidence of their last residence permission, in the form of a formal decision letter and/or the IRP card, together with a copy of the Notice, as evidence of their ongoing permission to remain in the State.

A list of frequently asked questions and responses is provided.

The notice can be accessed at the below link:

http://www.inis.gov.ie/en/INIS/frequently-asked-questions-immigration-permission-covid-19-temporary-measures.pdf/Files/frequently-asked-questions-immigration-permission-covid-19-temporary-measures.pdf

Berkeley Solicitors

NOTICE REGARDING RE-OPENING OF BERKELEY SOLICITORS

Berkeley Solicitors has reopened on the 30th March 2020, following a temporary closure of the office due to the Covid 19 crisis.

On the 29th March 2020, the government directed all residents to stay at home for a 14 day period, with some limited exceptions, in a national effort to restrict the spread of the  Covid 19 virus.

It is therefore not possible for Berkeley Solicitors to return to business as normal during this 14 day period, until at least the 12th April 2020.

We are instead returning to work in a limited capacity,  with a some changes to our procedures to ensure the safety and protection of our staff and clients.

Our phone lines will be open from 9 am to 12 midday, Monday to Friday. If you wish to contact us outside of these times, please email us and we will revert as soon as possible.

We are no longer arranging consultations in our office in person. All consultations are to be arranged by telephone, Skype or Zoom only.

All documents must be provided to the office electronically in PDF files.

We ask that clients do not call to the office in person to speak with their solicitor, as the solicitors will keep in contact with clients in the normal way by email and phone.

Any payments to be made to the office must be by electronic bank transfer only.

Please note that these new procedures are temporary based on the current exceptional circumstances, and we look forward to returning to work as normal on or after the 12th April next.

We will continue to update you on the development’s in this regard.

We thank you for your patience and support in complying with our new temporary procedures.

Best wishes,

Berkeley Solicitors

ANNOUNCEMENT REGARDING SUSPENSION OF NORMAL VISA APPLICATION PROCEDURE DUE TO COVID 19 PRECAUTIONS

ANNOUNCEMENT REGARDING SUSPENSION OF NORMAL VISA APPLICATION PROCEDURE DUE TO COVID 19 PRECAUTIONS

 

On the 21st March 2020, the Immigration Service Delivery (formerly INIS) announced the temporary suspension of the normal visa application procedures.

This suspension is due to commence on the 20th March 2020, and applies to all new visa applications.

The Department has further stated as follows:

While it will still be possible to apply for an Irish visa online in the normal manner, these temporary measures mean that applicants will not be able to complete their application process and we apologise for any inconvenience this might cause. Please note that any application made online will remain valid until such time as restrictions are lifted.

We intend to resume accepting applications as soon as safety concerns abate. Certain Priority/Emergency cases will continue to be processed and these include the following:

  • Emergency visa (e.g. Healthcare professionals, health researchers, and elderly care professionals;
  • Immediate family members of Irish citizens, persons legally resident in the State and Persons entitled to avail of the provision of the EU Free Movement Directive.

If your application falls into one of these categories, you can apply on-line in the usual way. Once you’ve completed the on-line application, you should follow the instructions given on the summary page as to where you should submit your application.

 

The full announcement can be viewed here:

http://www.inis.gov.ie/en/INIS/Pages/Home

Please note to all concerned clients, this suspension does not apply to any visa application submitted before the 20th March 2020.

 

Please further note that many visa applications will continue to be processed, including the “Immediate family members of Irish citizens, persons legally resident in the State and Persons entitled to avail of the provision of the EU Free Movement Directive.”

 

Please send all queries regarding visa applications to us as normal and we will advise when the office re opens.

 

Berkeley Solicitors

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

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court held:

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

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

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

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

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

THE PROBLEM WITH STAMP 3 IMMIGRATION PERMISSION

Persons on Stamp 3 immigration permission are restricted from taking up employment or working in Ireland.

Our office has met many clients whose lives are severely negatively impacted by holding Stamp 3 permission.

Many adults, who wish to work and integrate into Ireland are prevented from doing so unless their area of expertise or work experience leaves the option of an employment permit open to them. Even then obtaining a work permit is not always possible. The vast majority of occupations are ineligible for employment permits.

Many people holding Stamp 3 have been offered secure employment but have been unable to take up their employment offers due to the restrictions placed on them by their immigration status.

We submit that to put adults, who are able and willing to work in this position is unnecessary and cruel.

It prevents individuals from getting to know people in Ireland and fully integrate. Employment gives people confidence and a sense of purpose. Being unable to work negatively impacts on a person’s mental well being. A large part of a person’s self-worth and sense of being is derived from their employment.

We submit that the Minister should promote the ideals of employment and self-sufficiency and should not leave adults who are able to work in such a position. Persons on Stamp 3 are required to remain dependent on family members well into their adulthood.

Young adults are most affected by the issuance of Stamp 3 permission at an extremely important and formative part of their lives. Our office is even aware of adults with children of their own being issued Stamp 3 permission to reside, leaving them unable to support themselves or their own families.

We submit that allowing persons to work serves in the best interests of the state as it will allow persons to contribute to the economy and promotes integration and the building of communities.

We submit that there is no risk to state resources, funding or expenditure in the granting of Stamp 4/ Stamp 1 without the need for a work permit to persons currently resident on Stamp 3 as the Minister can make it a condition of a person’s immigration permission that they cannot access State supports.

The absolute prohibition on work was found to be unlawful in respect of persons seeking asylum in Ireland in the case of  of N.V.H. v Minister for Justice and Equality and ors [2017] IESC 35 in which it was held that the ability to engage in work is connected to the dignity of the human person and that prohibiting a non-citizen, in this particular case an asylum seeker, from seeking employment is therefore contrary to the Constitution. We submit that the same reasoning should apply to individuals currently on Stamp 3 permission in the State.

We highlight in particular the Court’s judgment at paragraphs 15-17 in which it is stated:

“15…Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself. However even approaching the matter with a healthy dose of skepticism, it must be recognised that work is connected to the dignity and freedom of the individual which the Preamble tells us the Constitution seeks to promote.

Persons on Stamp 3 permission are not eligible to take up employment in the State until if and when he or she naturalises as an Irish citizen- given the current processing times this could amount to anywhere from 5 to 6 years if not more.

We submit that the restriction on work created by Stamp 3 immigration permission is unnecessary and unreasonable.

If you or a family member are affected by Stamp 3 immigration permission please do not hesitate to contact our office.

PROPOSED CHANGES TO IRISH EMPLOYMENT PERMIT SYSTEM

The general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 has been published.

This is the result of a review conducted last year by the Department of Business, Enterprise and Innovation on economic migration policy review, which found inflexibilities in the current employment permit system.

The current system is governed by the existing Employment Permit Acts 2003-2014.

Speaking about the proposals, the Minister for Business, Enterprise and Innovation, Heather Humphreys, has said:

“The proposed legislation will increase the agility and responsiveness of Ireland’s economic migration system to meet skills and labour needs, while continuing to safeguard the labour market and support the employment rights of permit holders. I want to modernise the system and ensure that it is capable of adapting to changes in the future as well as fluctuations in demand across the economic cycle.”

The aim of the Bill is to consolidate existing legislation, as the Government believes any further amendment to the existing Employment Permit Acts 2003-2014 would significantly increase the complexity of the current system.

Major changes proposed by the Bill including streamlining the processes for ‘trusted partner’ and renewal applications, and making the system more agile and easier to modify to meet changing economic circumstances, technological advances and process changes as they arise.

Another proposal is to modify the ‘50:50 rule’, which currently requires that 50% of an employer’s staff be EEA nationals before an Irish employment permit may be granted, allowing it be waived in cases where the permit holder would be the sole employee. However, this change is subject to the employer demonstrating that they have made efforts to recruit from within Ireland and across the EEA in the first instance. The 50:50 requirement would resume from the point at which a second employee is contracted.

The Bill also proposes the introduction of new categories of employment permit, namely a Seasonal Irish Employment Permit and a Special Circumstances Employment Permit.

The Seasonal Irish Employment Permit would cater toward those working in the short-stay and recurrent employment sectors. Ireland is an outlier in not offering this type of permit, which would allow individuals to come to the State to work in sectors such tourism, farming and horticulture on a short-term basis.

The Special Circumstances Employment Permit would allow for bilateral, reciprocal agreements between Ireland and other States and could be used, for example, to address a need for a niche, but critically important skillset, for which no formal training is available in Ireland.

The proposals also include an extensive revision of the Labour Market Needs Test, the requirement whereby employers need to firstly advertise vacancies within Ireland and across the EEA.

Ms Humphreys has said:

“The overhaul [of the Labour Market Needs Test] will make it more relevant, efficient, and modernised to reflect current advertising practices. It will also ensure that the test is more targeted and effective in reaching Irish and European jobseekers in the first instance.”

The primary aim of Irish government policy when it comes to the labour market is to promote the sourcing of labour and skills from within Ireland, the EU and other EEA States first and from there look at alternatives from further afield. Permits for highly skilled personnel from outside the EEA can be granted where the requisite skills cannot be met by normal recruitment or training.

The aim of the proposed changes, according to Ms Humphreys, is to enhance accessibility and improve the transparency of the employment permit process while “retaining the core focus of a vacancy led employment permits system focused on meeting the skills and labour needs in the State.”

At present, these proposals are at a very early stage and are subject to change as the Bill moves through the legislative process.

The full text of the general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 can be found here.

 

 

SUPREME COURT TO HEAR APPEAL ON A DECISION CONCERNING THE DEFINITION OF “CHILD” IN FAMILY REUNIFICATION LAW

The Supreme Court is set to hear an appeal from the State over the definition of “child” as referred to in the International Protection Act 2015.

Section 56 the 2015 International Protection Act sets down the procedure for refugees and the holders of subsidiary protection to make an application for family reunification.

The State’s appeal specifically concerns Section 56.9(d) which provides as follows:

“(9) In this section… “member of a family” means in relation to the sponsor-

(d) a child of the sponsor who, on the date of the application under subsection 1 is under the age of 18 years and is not married.”

In 2018, Mr Justice Barrett ruled that non-biological or adopted children are eligible for family reunification. Delivered in May, the High Court decision involved ‘Mr X’ who held subsidiary protection in Ireland and subsequently applied for family reunification for a 14-year-old boy and 13-year-old girl to whom he was the sole guardian of.

After refusing to undertake a DNA test, as requested by the Minister, the application was refused in 2017. Mr X made a second application which was also refused and therefore brought judicial review proceedings with the aim of quashing the Minister’s refusal.

In his decision, Mr Justice Barrett acknowledged that “there is a “wide diversity” of familial structures and the 2015 Act does not exclude non-biological relationships. He further found that a “cookie cutter” definition of children which only recognised biological children, “would doubtless be easier for the State to police…but it is not what the Act provides”. Mr Justice Barrett’s decision acknowledged that it is not always a straightforward task in defining who is a child of someone. He therefore directed the Minister for reconsideration of the matter.

Chief Justice Frank Clarke, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine have accepted a “leapfrog” appeal by the Minister and State against the High Court decision. This means that the State’s appeal will bypass the Court of Appeal and be directly heard by the Supreme Court.

The judges have emphasised that the definition of “child” in relation to the 2015 Act has the potential to relate to any case regarding non-biological minors who are claimed to be the child of person who has international protection.

The question as to which minors may benefit from family reunification is “a matter of general public importance”, they have underscored.

A hearing date for the appeal has not yet been fixed.