Tag Archive for: immigration law in Ireland

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

COVID-19 AND INIS REGISTRATION REQUIREMENTS

On the 13th March 2020, the EU Treaty Rights Section have announced the following new measures;

In response to Government measures to ensure public health and safety in light of COVID-19, EU Treaty Rights Division of Immigration Service Delivery wishes to advise of the following arrangements with immediate effect.

  1. If you are the holder of a valid EUFam Residence card (including a Permanent Residence Card) that is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  2. If you are currently the holder of a valid temporary permission granted pending a decision on your EU Treaty Rights application (including a review application) and that permission is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  3. If you have recently made a Residence Card application and have not yet heard from EU Treaty Rights Division in this regard, and the permission granted on entry to the State is due to expire on or before 29th March 2020, this permission will be extended automatically until Monday 27th April 2020.

You do not need to contact EU Treaty Rights Division during this period to request an extension of your residence card or permission.

Due to the uncertainty of the situation, delays may occur.  Further updates will be provided in due course.

 

See link below:

 

http://www.inis.gov.ie/en/INIS/Pages/EU+Treaty+Rights

 

This exceptional measure to automatically extend EU Treaty Rights residence permissions until the 27th April 2020 is a welcome and necessary measure.

 

However, no such announcement has been made in respect of the automatic extensions of residence permissions issued under Irish law.  In fact, it has been confirmed that the Burgh Quay registration office will proceed as normal, with some minor changes;

 

Registration of immigration permissions at Burgh Quay will proceed as normal using a streamlined process designed to minimise the amount of time applicants need to spend in the office. In that regard, applicants must not bring family members or friends with them for registration, unless required to do so as part of the verification process, as this increases overall risks;

 

http://www.inis.gov.ie/en/INIS/Pages/updated-measures-to-respond-to-COVID-19-from-the-Immigration-Service-Delivery-Function-of-the-Department-Justice-and-Equality

Thus, many non-nationals are currently still required to attend the Burgh Quay Registration Office in person to extend their permission in circumstances, most likely in breach of the current guidelines regarding the Covid19 Crisis.

We would appeal to the Minister to urgently issue updated guidelines for all non-nationals to obtain automatic extensions of their permissions in these exceptional times.

 

Berkeley Solicitors

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.

CHENCHOOLIAH V MINISTER FOR JUSTICE- IMPORTANT JUDGEMENT ON RIGHTS OF EU CITIZEN SPOUSES

The European Court of Justice delivered a very significant judgement in the case of Chenchooliah v Minister for Justice on the 10th September 2019, following a request for a preliminary ruling from the High Court in 2018.

This judgement has brought clarity regarding the correct procedure for the spouses of EU citizens, whose EU citizen spouse has left Ireland and therefore have lost their right to reside under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 to have their right of residence considered by the Minister.

In the proceedings it was confirmed by the Court that Ms Chenchooliah ceased to be a beneficiary of the Directive and Regulations following the departure of her EU Citizen husband from Ireland.

The Court found that the question nevertheless remains as to whether Ms Chenchooliah’s position was governed by the Directive or only by the national law.

The Court found that Ms Chenchooliah ‘s circumstances are covered by the EU Directive, stating that the Directive not only contained the conditions for the granting of residence rights but it also makes provision for a set of rules to cover situations when a right of residence is lost.

The Court found that Article 15 of the Directive and the procedures provided for by Articles 30 and 31 apply to all decisions restricting free movement of Union citizens and their family members in cases where there are no public policy, public security or public health matters, as in this case.

The Court noted that this Article also provides that the State may not impose a ban on entry or expulsion in these circumstances.

The Court concluded that to find otherwise would deprive Article 15 of its substance and practical effect.

The Court concluded that in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made against Ms Chenchooliah cannot under any circumstances, impose a ban on entry into the territory.

The practical effect of this decision may be very far reaching. The Court has concluded that spouses of EU citizens who were at one time covered by the provisions of the EU Free Movement Directive cannot be issued with notices of intention to deport under national law (Section 3 of the Immigration Act 1999 (as amended)) as the consequence of a refusal of these applications results in a deportation order, which imposes an indefinite ban on entry to the State.

Furthermore, the Minister’s decisions in these cases must be made in light of the procedural safe guards laid down in the Directive and Regulations. The ability to make an expulsion order under the Directive are restricted to cases concerning public health, security and public policy.  Deportation orders are on the other hand made at the discretion of the Minister following a full consideration of the applicant’s circumstances.

It now follows that many persons have been issued notices of intention to deport unlawfully and are currently having their case considered under the incorrect procedure.

Many persons may in fact have been issued with a deportation order or even have been deported from the State unlawfully.

This case affects the spouses of EU citizens whose EU citizen spouse has left the state or has stopped exercising EU Treaty Rights in Ireland.

We would submit that many people who have received deportation orders or notice of intention to deport letters and were previously resident on the basis of EU Treaty Rights, may now have grounds to request the deportation orders to be revoked. Any persons who believe they are affected by this decision should now contact our office for further advices.

The full judgement can be read here.

NEW PRE-CLEARANCE PROCESS FOR NON-EEA DE FACTO PARTNERS OF IRISH CITIZENS

In order to streamline the process for Irish emigrants to return home with their Non-EEA De Facto Partners, a new pre-clearance process has been introduced.

Launched on the 19th of August 2019, this new process enables De Facto Partners of Irish nationals to apply for their permission to reside in Ireland prior to travelling, providing heightened certainty for those planning on moving home to Ireland with their De Facto Partners.

Under the previous system, the application process for De Facto partners could only begin after their arrival in Ireland. The new process aims to speed up the permission process, thereby allowing applicants to register, reside and work in Ireland without delays.

For immigration purposes, a person is considered a De Facto Partner, opposite or same sex, of another person if they have a mutual commitment to a shared life to the exclusion of others, akin to the practice of marriage or a civil partnership but not in law.

The Minister for Justice and Equality hopes that “this will encourage more people to come home… While away, some have met life partners and perhaps even started their own families. We want to show these people that Ireland is ready to welcome them home and that we will provide a clear immigration and labour market pathway for their De Facto Partners”.

For more information, please read here

EFFECTS OF BREXIT FOR NON-EEA FAMILY MEMBERS OF UNION CITIZENS RESIDENCE IN IRELAND

UPDATE- INIS has provided a welcomed update on the effects of Brexit on Non-EEA family members of British citizens seeking EU Treaty Rights currently residing in Ireland.

On the 31st of October, the United Kingdom will leave the EU and become a third country unless a draft withdrawal agreement is ratified prior to this. Brexit has left many unanswered questions for Non-EU/EEA British citizen family members.

Although currently entitled to avail of the European Communities (Free Movement of Persons) Regulations 2015, a no-deal scenario would mean that Non-EEA family members of British citizens will no longer be able to exercise EU treaty rights. Encouragingly, if you are currently a Stamp 4 EUFam card holder, INIS advises that you should have no concerns regarding your continued residence after the 31st of October in the State.

The Department of Justice and Equality has been contacting holders of Stamp 4 EUFam residence cards confirming that “transitional arrangements” are being put in place in the event of a no-deal Brexit. These arrangements will facilitate the transfer of free movement rights under domestic immigration arrangements. The objective of these transitional arrangements is to retain similar rights to those currently enjoyed as a non-EU/EEA family member of a British citizen.

If you are a non-EU/EEA British citizen family member and currently reside in Ireland, any changes in your personal circumstances, such as your civil status, your citizenship or that of the British citizen family member should be brought to the attention of EU Treaty Rights Division.

INIS has recently reaffirmed that where applications are pending, no action is currently required.

For more information, please read here

You can contact EU Treaty Rights Division by email at [email protected] or by post at:

EU Treaty Rights Division
Irish Naturalisation and Immigration Service
13/14 Burgh Quay
Dublin 2.

UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  here.

IMPORTANT HIGH COURT RULING DEEMS REFUSAL OF FAMILY REUNIFICATION TO SPOUSES/CIVIL PARTNERS OF REFUGEES/SUBSIDIARY PROTECTION HOLDERS UNCONSTITUTIONAL

The recent High Court judgment of Mr Justice Barrett in the joined cases of A. vs The Minister for Justice and Equality and S. and S. vs. The Minister for Justice and Equality has held as unconstitutional the statutory provision excluding family reunification rights to the spouses and civil partners of refugees whose marriage took place after the granting of refugee status.

This is a very favorable development for the holders of refugee status or subsidiary protection who wish to apply for family reunification for their spouse/civil partner but who were not married at the time that they made their application for protection in the State.

These joined cases raised the question, as to whether s. 56(9)(a) of the International Protection Act 2015 is unconstitutional and/or incompatible with the European Convention of Human Rights.

The context of this judgements is that previously, under the Refugee Act 1996, now repealed, refugees were  eligible for family reunification with their spouse whether or not they had been married at the time at which they made their application for protection in the State.

Under the more recent International Protection Act 2015, section 56(9)(a) and (b) provides that holders of refugee status and subsidiary protection are only eligible for family reunification with their spouse where their marriage took place prior to the date of their application for protection in the State.

In his judgment, Mr Justice Barrett declared that Section 56(9)(a) is “repugnant to the provisions of the Constitution” and is therefore “invalid and does not have the force of law.”

The Court found that there was no objective and reasonable justification in this context for a differentiation in treatment between couples married pre-flight to those married post-flight, referring to the European Court of Human Rights case Hode and Abdi v. UK, in which that Court had objected to differentiation in treatment on the basis of the time of marriage.

The Judge went on to state that although it was no longer necessary as the section had already been declared unconstitutional, the court would also have declared that Section 56(9)(a) is incompatible with the State’s obligation under Article 14 ECHR read together with Article 8 ECHR, the latter protecting the rights to family and private life.

The Court in this ruling has notably departed from the judgment of RC or VB v. The Minister for Justice [2019] IEHC 55, which dealt with a similar question.

This judgment has significant implications for refugees and beneficiaries of subsidiary protection who have applied for their spouse or civil partner to be granted family reunification and who have been refused on the basis that their marriage took place after they made their application for protection in the State.

The judgement also opens to the door for refugees who failed to submit an application for family reunification for their spouse or civil partner under the 2015 Act, on the basis that they believed they were not eligible under Section 56 (9) (a).

If you believe this may affect you please contact the office with your questions and we will seek to assist you in the next steps.