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MINISTER FOR JUSTICE ANNOUNCES BURGH QUAY REGISTRATION OFFICE TO REOPEN AND EXPANSION OF ONLINE REGISTRATION RENEWAL SYSTEM

On 7th July 2020 the Minister for Justice, Helen McEntee, announced that the Online Renewal system for immigration permissions will be expanded to allow all Dublin based non-nationals to apply online to renew their immigration registration.

It is expected that this will make the renewal process easier for thousands of people every year, and significantly reduce the number of people who need to attend the Burgh Quay Registration Office in person.

The online system will be made available from 7th July 2020 for those with an urgent need to travel and who require an Immigration Residence Permit (IRP) card before they travel.

Making the announcement, the Minister stated:

“I’m very pleased to be able to announce the expansion of our online Registration Renewal System. This is good news for our Dublin based customers because it makes the whole process easier and means they can do their renewal from the comfort of their own home instead of having to book an appointment to come into the city and attend Burgh Quay. 

 Now, all that applicants have to do is complete a form online, upload supporting documents, pay the fee and then submit their passport and current IRP card via registered post. This is much easier and quicker than the previous system, where it could sometimes be difficult to get an appointment.” 

The Minister also announced that the Burgh Quay Registration Office will reopen on 20th July 2020 for first time registration. As first-time registrations require biometrics to be taken, it is not possible to for these to be done online.

Individuals who had their first-time registration appointments cancelled when the Burgh Quay office closed in March due to Covid-19 restrictions will be prioritised once the office reopens. The Immigration Service Delivery will be contacting those affected to organise new appointments.

The full announcement can be read here.

If you or a family member have queries about your immigration permission, please do not hesitate to contact our office.

VISA SERVICES HAVE RESUMED FROM 22ND JUNE 2020

The Immigration Service Delivery, who process visa applications have confirmed that some visa services have resumed from the 22nd June 2020.

During this “initial resumption phase”, the ISD will be accepting Long Stay “D” visa applications which includes Study. This is in addition to the categories considered under the Priority/Emergency cases which include:

  • Emergency visa (e.g. Healthcare professionals, health researchers, and elderly care professionals);
  • Immediate family members of Irish citizens (who are returning to their ordinary place of residence in Ireland);
  • Persons legally resident in the State;
  • Persons entitled to avail of the provision of the EU Free Movement Directive;

This includes short stay visa application for the family members of EU nationals. However, the ISD have not yet resumed the issuance of short stay visas for non-essential travel.

The notice clarifies that in countries where it is not possible to resume visa services due to the differing restrictions which remain in place, the ISD intend to resume accepting applications as soon as it is possible to so.

Advice is given to contact the relevant Irish Embassy/Mission website for up to date information. Many embassies and VFS Global Services remain closed. Our office continues to work closely with our clients on a case by case basis to ensure that the submission of their visa application is facilitated.

This is a very encouraging development and if you or a family member have any queries about applying for an Irish visa, we would encourage anyone with queries to contact our office and we would be more than happy to advise.

The notice can be read in full here.

 

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

SUPREME COURT DETERMINES DEFINITION OF A CHILD FOR PURPOSES OF FAMILY REUNIFICATION

The recent ruling of the Irish Supreme Court in X v Minister for Justice and Equality [2020] IESC 284, was delivered on 7th June 2020. The Supreme Court held that the definition of child for the purposes of Section 56(9) of the International Protection Act 2015 is confined to a biological or adopted child only.

The judgement overturns the finding in the High Court that the definition of child within the International Protection Act could include more far reaching interpretations of “child”, citing the variety and complexity of family relationships.

The Court highlighted the wording of the legislative provision, is “child of the sponsor”. The Court found that the clear reading of this provision limited the scope of children to biological and adopted children. The Court further noted that other children were excluded from the definition of family members for immigration purposes including children over the age of 18. The Court found that the provisions of Section 56(9) where much more restrictive than its predecessor, The Refugee Act 1996.

The Court also found that it would be wrong and incorrect of the Minister to request DNA evidence as a matter of course in respect of refugee family reunification applications. The Court did however find that were there was a legitimate reason or cause to doubt parentage or family relationship it can be an appropriate action of the Minister to request such evidence. The Court noted that the Minister does have guidelines with respect to DNA evidence in respect of D join family visa applications, but that it did not have guidelines in place in respect of refugee family reunification.   The Court noted that DNA goes to the heart of a person’s identity and should only be requested if there is no alternative method to resolve the issues at hand.

The Supreme Court allowed the Minister’s appeal and overturned the decision of the High Court.

If you have any queries regarding how this judgement may affect your application for family reunification, please do not hesitate to contact our office.

NO NEW VISA APPLICATIONS ACCEPTED BY INIS SINCE MARCH 2020

RTÉ News has reported that the Irish Naturalisation and Immigration Service has not accepted any new visa applications as of 20th March 2020 due to Covid-19.

A spokesperson from the Department of Justice was quoted as saying:

“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. However, any application made online will remain valid until such time as restrictions are lifted.”

VFS Global, which provides a wide range of visa-related services, has also closed many of its Visa Application Centres.

The VFS website states that Ireland has suspended visa services globally as of 23rd March 2020.

This is despite the fact that a limited category of “Priority/Emergency” visas are still being processed, as outlined in INIS notice issued on 21st March 2020. These include professionals, health researchers and elderly care professionals, immediate family members of Irish citizens who are returning to their ordinary place of residence in Ireland, persons legally resident in the State, and persons entitled to avail of the provisions of the EU Free Movement Directive.

In instances where the local Consulate or Embassy is unable to process visa applications falling within these categories due to local Covid-19 restrictions, the Department has arranged to accept visa applications in its Dublin Visa Office.

RTÉ News questioned whether the decision to cease accepting new visa applications since March 2020 was allowing any backlog of applications to be cleared, and asked the Department of Justice to clarify what the situation is today.

The Department responded:

“…it is not possible to state a total number of employment visa applications on hand at a specific point in time, be it December or now. This is because of the fact that visas are received and processed throughout our network of missions globally and not just at the office here in Dublin.”

The spokesperson for the Department also stated that the intention is to resume accepting visa applications as soon as it is safe to do so.

The article can be read in full here.

If you or a family member have any queries about applying for an Irish visa, please do not hesitate to contact our office.

POSSIBILITY OF GRANTING LEGAL STATUS TO UNDOCUMENTED MIGRANTS DISCUSSED AT GOVERNMENT TALKS

The Irish Independent has reported that a proposed scheme to regularise the status of undocumented migrants in Ireland has been discussed as part of Government formation talks between Fianna Fáil, Fine Gael and the Green Party.

According to the article, published by the Irish Independent on 21st May 2020, the parties are in talks to establish a scheme that would allow undocumented migrants in Ireland to apply to regularise their status. The parties proposed that the criteria for such a scheme would be set out within 18 months of the new Government taking office.

At present there has been no final agreement on this scheme and any developments on this matter would be dependent on Fianna Fáil, Fine Gael and the Green Party forming a coalition Government together.

It is estimated that there are currently 15,000-17,000 undocumented people living in Ireland, approximately 2,000 to 3,000 of whom are thought to be children. The Migrant Rights Centre Ireland (MRCI) states that 93% of undocumented migrants are in work, including as many as 29% who work as carers.  The Covid-19 pandemic has also highlighted that many undocumented migrants are employed as key essential workers, working in difficult and challenging situations to keep the country going during this ongoing crisis.

We at Berkeley Solicitors would fully support the implementation of a scheme to regularise the status of undocumented migrants and will publish any future developments on this on our website.

The full article can be read here.

If you or a family member have any queries about your immigration status, please contact our office.

UK BILL INTRODUCED TO END FREE MOVEMENT OF PEOPLE

The United Kingdom has recently passed The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which was first introduced on 5th March 2020. The Bill, which ends the principle of free movement of people in the United Kingdom, is set to be introduced upon the conclusion of the transitional period on 31st December 2020.

The Bill, passed by 351 votes to 252 on 18th May 2020, has marked concrete developments in the UK’s transition into a points-based immigration system. The UK government clarified in February that points will be awarded for certain requirements such as the ability to speak English, having a job offer from an approved employer and meeting a salary threshold of £25,600. Points may also be awarded for certain qualifications or for working in an area where there is a shortage of workers.

However, the Bill clearly prioritises migrants with “high skilled jobs” which concerningly appears to be determined based on financial thresholds above any other factor.

UK Home Secretary, Priti Patel, has stated “We’re ending free movement to open Britain up to the world. It will ensure people can come to our country based on what they have to offer, not where they come from.”

The Bill includes provisions intended to uphold the historical entitlement of Irish citizens to enter and remain in the UK without the need of seeking permission or leave to do so.

These provisions relating to Irish citizens will operate alongside the Common Travel Area (CTA) regime once EU freedom of movement comes to an end.

Under the CTA, Irish citizens are permitted to move freely between Ireland and the UK and vice versa. This extends to the right to enter, reside, pursue education, take up employment and access State benefits. On the 8th May 2019, both the Irish and UK government signed a Memorandum of Understanding which reiterated their commitment to the CTA and to the maintenance of the derived rights from this agreement.

The Bill has made it clear that the rights being afforded to Irish citizens are more far-reaching than those afforded to other EEA nationals. The UK government’s position is that Irish people will have a general right to reside in the UK which is separate to their rights as EU citizens.

Although this Bill provides legislative certainty to Irish citizens on their rights to enter and reside in the UK without leave, disappointingly the provisions are not yet provided for in comprehensive detail.

The Irish  Human Rights and Equality Commission called for an international treaty in their November 2018 report to formalise common immigration rules and the rights of Irish citizens in the UK during the wake of the uncertainty caused by Brexit.

The Bill places EEA and Non-EEA nationals on the same footing in terms of immigration permissions in the UK.

The free movement of people across 28 countries, considered to be one of the greatest achievements of the European Union, has been significantly reduced by this Bill.

The UK’s new system will take a restrictive economic approach to those considered eligible to travel to the UK and will disproportionately affect those not considered to be “skilled workers” i.e. those who earn less than £25,600 per annum.

This concern caused by this Bill is exacerbated by the ongoing Covid-19 crisis, and the proposed immigration rules will undoubtedly deem many healthcare workers ineligible to reside in the UK.

Despite the Home Secretary referring to the introduction of a fast-track visa for doctors, nurses and other health professions, the passing of this Bill will understandably create a huge amount of worry to those already facing extreme pressure and uncertainty caused by both Brexit and Covid-19.

It’s expected that this Bill will consequently restrict the freedom of movement of UK citizens in both the EU and outside the EU.

It seems that further details of the UK’s move towards a controversial points-based system will likely not be formalised until the conclusion of the transitional period in December 2020.

 

UK GOVERNMENT CONFIRMS PEOPLE BORN IN NORTHERN IRELAND ARE TO BE CONSIDERED EU CITIZENS FOR CERTAIN IMMIGRATION PURPOSES

The UK Government has announced a change to its immigration laws following a landmark court case involving Derry woman Emma De Souza and her US-born husband Jake De Souza.

The case concerned the right of people in Northern Ireland to be considered Irish or British citizens, or both, as per the terms of the 1998 Good Friday Agreement.

Mr De Souza had applied to the UK Home Office for an EEA residence card to live and work in Northern Ireland on the basis of his marriage to Ms De Souza in 2015. The application was rejected on the basis that Ms De Souza was considered a British citizen because she was born in Northern Ireland, and therefore she was not entitled to EU free movement rights. This was despite the fact that Ms De Souza had never held a British passport and identified as an Irish citizen.

The UK Home Office originally argued that people born in Northern Ireland are automatically British citizens according to the 1981 British Nationality Act, even if they identify as Irish. It stated that the only way it could deal with Mr De Souza’s application was if Ms De Souza renounced her status as a British citizen.

Ms De Souza argued that the UK’s immigration laws were incompatible with the right of Northern Irish people to be accepted as Irish or British, or both, under the Good Friday Agreement.

The UK Home Office has now made a change to its immigration laws, confirming that British and Irish citizens born in Northern Ireland will be treated as EU citizens.

This decision has far-reaching consequences in light of the UK’s EU Settlement Scheme, which is open for applications until June 2021. The Scheme allows EU citizens and their family members to apply to reside in the UK post-Brexit. Until now, family members of British or dual British-Irish citizens from Northern Ireland were ineligible to apply for status under the Scheme.

All citizens in Northern Ireland will now have the right to apply for a non-EEA family member to remain in the UK through the Scheme, up until June 2021. This means that British citizens in Northern Ireland now have more rights than their counterparts in England, Wales and Scotland.

Speaking about the announcement, Ms De Souza commented:

“These changes are on the back of years of campaigning for the full recognition of our right to be accepted as Irish or British or both under the Good Friday Agreement.

We have always contended that no-one should be forced to adopt or renounce a citizenship in order to access rights, to do so goes against both the letter and the spirit of the Good Friday Agreement, the Home Office now concedes that point.

These changes will only apply to Northern Ireland and recognise the unique status that the region holds within the United Kingdom. Something that we have longed called for.

We personally know a number of families that will benefit from this change and are filled with joy and relief that these families will not face calls to renounce British citizenship or face years in court like we have.”

DEPARTMENT OF JUSTICE ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS

The Department of Justice has announced an additional two-month extension of immigration permissions due to the Covid-19 pandemic.

This temporary extension applies to the following categories:

  • Persons with immigration permissions due to expire between 20th May 2020 and 20th July 2020, including those that were already extended under the previous notice issued on 20th March 2020;
  • Persons awaiting their first registration, having been granted permission to land at a port of entry on condition they register at Burgh Quay or their local registration office within 3 months, but who have not yet done so;
  • Persons resident in Ireland on the basis of Short Stay visas.

The notice confirms that the permissions will be automatically renewed for a two-month period, on the same basis as the existing permission and subject to the same conditions.

The notice also clarifies that international English Language Students can continue to work if they wish but that they must also re-enrol in an online course of study to adhere to the conditions of their permission.

The registration office in Burgh Quay in Dublin will remain closed and will only reopen when it is safe to do so. The normal requirements to register residence permission will not arise until the registration offices can reopen or alternative arrangements are put in place.

Non-nationals 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.

The notice can be accessed here.

If you or a family member are affected by this notice, please contact our office to discuss.

DIFFERENT APPROACHES TO COVID-19 VISA APPLICATIONS IN IRELAND AND THE UK

The Covid-19 pandemic has resulted in a vast decrease in international travel, and many people with valid Irish visas are now unable to enter the State during the validity period of their visa.

The Irish Naturalisation and Immigration Service has stated that it will not re-issue visas for new dates at this time, and those individuals who cannot travel to Ireland during the validity period of their visa will need to reapply for an Irish visa at a later date.

This is in contrast to the approach of the UK Government which has published the following announcement:

“If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year.

To make a request, contact the Coronavirus Immigration Help Centre…

You’ll be contacted when our VACs reopen to arrange for a replacement visa to be endorsed in your passport.

You will not be penalised for being unable collect your BRP while coronavirus measures are in place.

This process will be in place until the end of 2020.”

The announcement can be read in full here.

We at Berkeley Solicitors find the approach of the Irish Naturalisation and Immigration Service on this issue to be extremely disappointing and unfair to those individuals who have recently been granted visas for Ireland, many of whom may have been waiting many months to receive a decision on their visa application.

We call on the Irish Naturalisation and Immigration Service to revise their position on this matter and consider adopting a similar approach to that of the UK, allowing those affected to request replacement visas with new validity dates.

If you have any queries about applying for an Irish visa at this time, please do not hesitate to contact our office.