Tag Archive for: immigration law in Ireland

PERVAIS V MINISTER FOR JUSTICE AND EQUALITY [2019] IEHC 403 AND THE DEFINITION OF A ‘DURABLE RELATIONSHIP’

The High Court has delivered judgement in a case that may have a significant impact on applications from the partners of EU citizens under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015,

Partners can fall within the category of “permitted family member”.

In the Directive beneficiaries in this category are described in Article 3(2) as the partner “with whom the Union citizen has a durable relationship, duly attested”.

This definition can be found at reg.5(1)(b) of the Regulations.

In this case the Court asked the question: What is a “durable relationship”?

The Court notes:
The phrase is not defined in the Citizens’ Rights Directive, most likely so as to allow the various member states to proceed by reference to concepts of relationships/durability that suit their respective mores and traditions.

The Court was critical that the Minister has not tried to define or elaborate on this definition by way of Ministerial guidance. The Court found that an untenable situation has arisen whereby no-one (applicants, officials or indeed the court) quite knows what a “durable relationship” is.

It has emerged in the proceedings that a “durable relationship”, as conceived by the Minister involves a ‘sort of’ two-year benchmark, however a lower timeframe can be applied if that is considered to be merited on the evidence in any one case… though quite when the evidence will be (or is) considered to justify the application of a lower timeframe and how a particular lower timeframe is settled upon is entirely unclear.

The Judge went through the EU1A application form and guidance note in some detail (this is the application form on which a permitted family member makes an application for an EU residence card). The Court noted that as the concept of “durable relationship” is not defined, asking someone to provide “Evidence of a durable relationship” is largely, if not completely, meaningless.

The Court also held that the Minister had allowed a confusion to arise between the concept of a durable and attested relationship and the conception of “cohabitation”.

The Court found in this respect:
“… it seems to the court that the concept of “cohabitation” has skewed the Minister’s approach to such applications as are made under reg.5, not least in the suggestion that “tenancy agreements, utility bills” would be suitable evidence of “cohabitation”. Perhaps they would, but reg.5(1)(a) refers to a “durable relationship”, not a relationship of cohabitation.”

The Court outlined a number of scenarios where a durable and attested relationship might exist both with or without cohabitation and made a number of remarks as to the approach of the Minister to require evidence and documents of cohabitation.

The Court answered a number of questions in concluding its judgment, most notably:

Q2. (i) Has Directive 2004/38/EU been adequately transposed into domestic law by the respondents?
(ii) Have the respondents infringed the principle of effectiveness by failing to provide any legislative definition of the concept of “durable relationship duly attested” or any legislative framework/guidance for the test to be applied and the proofs required?

No to (i).

Yes to (ii), save that the court considers that a definition could also be provided in non-legislative guidance (which to this time this has not occurred). The manner of transposition yields the various legal issues described herein and the principle of effectiveness has been breached.

It will be interesting to see how the Minister deals with the Court’s judgement in this matter. It appears that in the Court’s view it would be open to the Minister to deal with this issue by way of statute/ amendment to the regulations or alternatively by way of Ministerial guidelines.

We hope that in light of this judgement the Minister goes on to provide a clear definition of a “durable relationship, duly attested” so that there is more clarity for EU citizens and their partners as to their eligibility for an EU fam residence card.

The full judgment can be read here.

UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.

 

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.

NEW PRACTICE DIRECTION FOR ASYLUM AND IMMIGRATION CASES IN THE HIGH COURT

A new practice direction on asylum and immigration cases issued by President of the High Court Mr Justice Peter Kelly on the 17th December 2018 has created significant changes in the Asylum and Immigration court, and imposed significant new obligations on both solicitors and applicants.

Practice Direction 81 came into force on the 1st January 2019 and applies only to cases on the Asylum and Immigration list. The obligations imposed by High Court Practice Direction 81 are significant and wide-ranging.

Following the issuance of this practice direction, there is a requirement on all applicants to disclose a substantial amount of information and documentation to the Court regarding their case, including details of all previous immigration applications made by any applicant or their family member in Ireland or any other country and details of any previous or current civil or criminal proceedings. This is the case even when the applicant’s family members are not involved in the Judicial Review proceedings.

 

Under the Practice Direction all adult applicants are required to submit a further affidavit providing the information as requested in the Practice Direction. There is also a requirement that the applicant’s solicitor swear an affidavit in relation to the proceedings.

 

The Practice Direction requires the following to have been completed in respect of every new asylum and immigration case initiated after the 1st January 2019.

  • Provide the Court with all relevant material facts by way of a sworn affidavit
  • Provide a full account of the applicant and relevant family member’s immigration history, to include an account of any applications made to the Department of Justice or any other immigration or protection authority both in Ireland or in any other country – this would include previous visa or immigration applications to any State.
  • Exhibit the full immigration file for all immigration/protection applications of every applicant made both in Ireland and other countries. If such documents are not exhibited, a full explanation as to why they have not been exhibited and provide an outline of what attempts have been made to acquire the documents
  • Draw the Court’s attention to any “significant matter of fact adverse to the applicant’s case”
  • Swear that all previous representations made to the Department of Justice or any other immigration authority have been disclosed, or if not, to explain why not
  • Swear that all previous statements or representations made to the Department of Justice or any other immigration authority for the applicant and family members is the truth in every respect, or if not, particularising the extent to which any such statements or representations are untrue;
  • Swear that all statements in the Statement of Grounds are true in every respect, or if not, particularising the extent to which they are not true;
  • Swear that the applicant is aware that it is an offence of perjury to make a statement in any affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading.
  • Identify the applicant’s religion and confirming that the grounding affidavit has been sworn in a specified manner recognised by that religion
  • Swear that the contents and implications of the averments of verification, all statements in the statement of grounds and the details of all previous claims and representations made by or on behalf of the applicant or any member of his or her family, or any solicitor on behalf of any of them, have been fully explained to the applicant by his or her solicitor, and that the applicant fully understands same
  • Specify the language that the applicant understands and confirming that the applicant fully understands the affidavit and its exhibits in the language in which it is sworn.
  • Exhibit any document in a language other than English with a translated document by official translation company
  • Disclose any criminal offences/convictions/proceedings in Ireland or any other country
  • Disclose if the applicant has issued any legal proceedings in any immigration/criminal/civil matter in Ireland or any other country
  • Swear and file a further affidavit in respect of any new material relevant to the court subsequent to the grounding affidavit
  • Attend the substantive hearing of the case in person if ordinarily resident in the State, and if required to orally confirm the averments of verification set out in the affidavits.
  • Applicants may be required to complete and submit to the court checklists of the requirements in the Practice Direction as may be required by the Judge from time to time

 

Berkeley Solicitors has recently contacted all clients who have current Judicial Review cases active in our office to explain the new requirements imposed by the practice direction. If there are any further developments on the new Practice Direction there will be a further update on the Immigration Blog and clients will be contacted.

NOTE ON DEPARTMENT OF FOREIGN AFFAIRS WEB PAGE RE BRITAIN’S DEPARTURE FROM THE EUROPEAN UNION

British and EU citizens and their non-EEA Family members understandably have a lot of questions and concerns regarding their status, rights of residence and ongoing rights following Britain’s Departure from the EU.

Highly published negotiations are ongoing between the EU and Britain in order to agree the terms and conditions of Britain’s ultimate departure from the EU.

The primary/initial stages of this negotiation process addressed in principle three main issues, including, guaranteeing citizen’s rights, the rights of those currently living in the UK and UK citizens currently living in the EU.

The Department of Foreign Affairs has placed a section on its webpage specifically dedicated to Brexit and Ireland’s position with regards to same.

A note on same currently outlines that, in principle, certain elements of the draft Withdrawal Agreement have been agreed by the EU and UK negotiating teams.

Of particular note is the agreement in principle that EU law will continue to apply to the UK after it leaves the EU on 29th March 2019 up until 31st December 2020.

The draft proposals relating to the protection of EU citizens rights in the UK outlines that EU citizens and their family members will be required to apply for “status” in the UK within two years from the date of withdrawal- up to 29th March 2021. The draft proposals that the UK will apply a system for the grant of “UK status” under the same requirements as Directive 2004/38/EC. In essence if an applicant- EU citizen/ Non-EEA Family member of an EU citizen would have been/is eligible for residence in the UK under the Directive, then UK status will be issued to them. If applicants would not have been eligible/ met the conditions under the Directive then UK Status will be refused- those refused will be entitled to judicial redress if their applications are refused.

Full agreement of course has yet to be reached in terms of the manner of Britain’s exit from the EU and the impact this will have on the rights of EU and British citizens and their family members.

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.

Read more

IRELAND’S POPULATION GROWTH FIVE TIMES EU AVERAGE

According to new figures Ireland’s population growth was more than five times the EU average in 2017. The number of residents in total in the Republic of Ireland rose by 53,900 last year to nearly 4.84 million, an increase of 1.1%. The EU average is a staggering 0.2% in comparison. Ireland had the fourth highest rate of population growth within the EU in the year 2017. However, Ireland holds the distinct title of having the highest birth rate of any EU member state with 12.9 births per 1,000 population.

The only other countries to have experienced higher and more drastic rates of population growth are Malta, Luxembourg and Sweden. A factor contributing to the increase in figures for these countries comes from the impact of immigration in those countries. With this in mind Ireland had the highest rate of natural increase. This meaning there was an excess of births over deaths in Ireland in 2017. This is not the case for 13 Eu member states such as Germany, Italy, Spain and Finland where the death rates outweigh the birth rates. The EU’s overall natural population falling.

Ireland has the youngest population of all Europeans as well as retaining its position as having the lowest death rate in the EU. The findings show with 6.3 deaths per 1,000 population compared to the average of 10.3 deaths per 1,000 in the year 2017. Overall the population of the EU increased in 2017 from 511.5 million to 512.6 million, an increase of 0.2%. The CSO has released its prediction that Ireland’s population will continue to grow until 2051 when it will reach almost 6.7 million.

Berkeley Solicitors

OIREACHTAS COMMITTEE REPORT ON MIGRANT FISHERMEN

The exploitation of undocumented workers in the Irish finish industry was the subject of research carried out by The Migrant Rights Centre which found that two thirds of migrant fishermen work more than 100 hours a week, and receive an average pay of €2.82 an hour, and often furthermore suffer physical and verbal abuse.

The Migrant Rights Centre Ireland has worked with the migrant fishermen employed on Irish boats to advocate and lobby on their behalf.  This work has resulted in the publication of the ‘Report on the situation of non-EEA crew in the Irish Fishing Fleet under the Atypical Worker Permission Scheme’ by the Joint Committee on Business, Enterprise and Innovation.

The Committee has made it very clear that the abuse and exploitation can go on no more.

The Committee made a number of recommendations to address this ongoing exploitation in the Irish fishing industry. One of the recommendations is that all undocumented non-EEA nationals in the Irish finishing industry should have their status regularised within six months.

Eden McGinley, MCRI Director, stated “We welcome this report and its recommendations many of which match our own assessment of the issue. In particular we welcome the recommendation that a worker not be tied to one employer – it is essential that workers be able to leave exploitative employers.”

Eden McGinley also stated that “The committee also recommended the vital provision of extra resources to the Workplace Relations Commission (WRC) to continue inspections, highlighting the need for access to interpreters, and suggested that one Minister and Government department be given overall responsibility in this area. MRCI calls on Minister Heather Humphreys and the Department of Business, Enterprise and Innovation to take up this role.”

At Berkeley Solicitors we have acted for a number of clients who have experienced such exploitation working in the fishing industry. We would also call on the government to implement these important changes as recommended by the Committee to protect this very vulnerable and exploited group. We commend the MCRI for the good work they have done on behalf of the undocumented fishermen.

Berkeley Solicitors

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