Tag Archive for: immigration law

PROCESSING TIMES FOR FOREIGN BIRTH REGISTRATION

PROCESSING TIMES FOR FOREIGN BIRTH REGISTRATION

The Department of Foreign Affairs have stated on their website that the current estimated processing time for Foreign Birth Registration (FBR) application is over two years.

Otherwise known as Citizenship by descent, FBR applications are a complex process, requiring applicants to submit official documentation relating to three generations, which may have been issued by several jurisdictions.

The DFA’s guidance for FBR applications on their website states that there has been an increase in the number of these applications being submitted, and notably they have seen an increase in the number of incomplete applications.

The DFA’s guidance emphasises the importance of submitting the required, original documentation and paying the appropriate fee at the time of application to avoid any delays in the processing of your application.

At present the guidance states that after all the correct physical documents are received it takes over two years to process a Foreign Birth Registration application. The website further sates however that they have set up a new Foreign Birth Registration teams in an aim to manage the increased volume of applications and efficiency.

This blog has been drafted with reference to the following website:

https://www.ireland.ie/en/dfa/citizenship/#Foreign%20Birth%20Registration

For further details on applying for Foreign Birth Registration, please visit the following link:

https://www.ireland.ie/en/dfa/citizenship/born-abroad/registering-a-foreign-birth/

Berkeley Solicitors are available to provide support and assistance to any Foreign Birth Registration applicants.

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

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

Berkeley Solicitors have recently received a number of successful naturalisation decisions for clients resident on Stamp 0 permission.

In approving the applications for our clients, the Department of Justice have accepted that Stamp 0 is reckonable residence for the purposes of naturalisation.

These decisions are significant given that the Department have previously maintained that Stamp 0 residence permission is a low-level immigration status which is granted for a limited and specific stay in Ireland.

There are three main types of persons eligible for Stamp 0:

 

  1. Elderly dependent relatives
  2. Persons of independent means
  3. Visiting academics

This is very welcome news for individuals resident in the State on Stamp 0 permission, many of whom have made Ireland their permanent home but have concerns regarding their reckonable residence in the State for the purposes of naturalisation.

Although acquiring citizenship is a privilege and not a right and is subject to the Minister’s absolute discretion, the Minister must act within the confines of the statutory definition of reckonable residence as defined at Section 16 A of the Irish Nationality and Citizenship Act 1956, as amended.

We at Berkeley Solicitors welcome this very encouraging development surrounding reckonable residence and we congratulate our clients on their successful applications.

We are happy to advise any clients wishing to pursue their naturalisation application.

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

NOTICE ON NON-EEA NATIONALS AWAITING AN EU NATIONAL PASSPORT

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

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

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

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

Please see the below link for further details:

 

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

 

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

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

IMMIGRATION SERVICE DELIVERY ANNOUNCE INITIATIVE TO FACILITATE CUSTOMER TRAVELLING AT CHRISTMAS

The Minister for Justice recently published a notice on their website to facilitate customers who may wish to travel over the Christmas and New Year period.

The Travel Confirmation Notice states that Non-EU/EEA residents who have submitted an application to renew their permission in advance of its expiry, may use their current recently expired IRP card to travel between 6th December 2023 and 31st January 2024.

The notice has been introduced in consideration of the current backlog in processing renewals.

 

The notice only applies to persons who have submitted an application to renew their permission, prior to its expiry. The entitlement will not apply to persons who submitted an application for renewal after its expiry.

To avail if this notice, persons should have the following on hand for their travels during this period:

 

 

The ISD state that they have advised all airlines and foreign missions of the Irish initiative in place of this note, however it cannot force them to comply.

From the 31st of January 2024 onwards, a valid in date IRP card and/or appropriate visa will be required where non-nationals intend to re-enter the State.

 

For further details of the initiative please see the below link:

https://www.irishimmigration.ie/immigration-service-delivery-isd-announces-initiative-to-facilitate-customers-travelling-at-christmas/

 

For frequently asked questions of the notice, please see the below link:

https://www.irishimmigration.ie/wp-content/uploads/2023/12/ISD-Website-Travel-Notice-FAQs-2023-1.pdf

 

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

 

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

DECISIONS TO REVOKE EU FAM RESIDENCE CARDS AND IRISH PASSPORTS POTENTIALLY UNLAWFUL

Two recent judgements of the Superior Courts have called into question the legality of all decisions made by the Minister for Justice in retrospectively revoking EU Fam residence cards, immigration permissions, Irish passports and declarations of refugee status.

 

Please see our previous blog articles on the Supreme Court judgement in U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25,  and the High Court judgement in AKS v the Minister for Justice [2023] IEHC 1.

 

If you have received a decision to revoke your EU Fam residence card on the basis that it was never valid or that it was cancelled with effect from a date in the past or have had your application for Irish citizenship deemed ineligible on the basis of revocation of your EU residence card, these decisions may be unlawful.

 

If a child previously held an Irish passport that was cancelled by the Passport Office as a result of revocation of their parents EU Fam residence card or permission to reside in the State, it is also possible that the decision is unlawful.

 

It is important to seek legal advice if these judgements are relevant to your case.

 

Please do not hesitate to contact Berkeley Solicitors if you have been impacted by these important issues.

 

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

On the 3rd of January, 2023, the Department of Justice announced that all those currently holding valid Stamp 1 permission to work as a non-EEA crew member in the Irish Fishing Fleet on or after 1st January 2023 will be granted Stamp 4 immigration permission.

 

This permission will be granted on an exceptional basis due to the closure of new applications for the Atypical Working Scheme (AWS) for such non-EEA crew. The AWS Scheme closed following an agreement to transfer responsibility for work permissions in this sector to the Employment Permit system. The granting of Stamp 4 permissions has been announced to provide certainty and security to employees and employers in this sector during this transitional period.

 

Stamp 4 immigration permission will be granted to any individual non-EEA crew member who currently holds a valid IRP card expiring on or after 1st January 2023. Any individuals who hold a letter of permission under the AWS Scheme issued on or after the 3rd of October 2022, will also be eligible for Stamp 4, as such letters are valid for 90 days from the date of issue.

 

Eligible individuals are advised to make an appointment as soon as possible at their local GNIB Office to be granted this permission. Those attending an appointment should bring their current, in-date passport, their most recent valid in-date letter of permission under the AWS Scheme, and their current IRP card (if applicable).

 

Any crew member whose AWS permission expired on or before the 31st of December 2022, and who has not renewed their permission, will not be eligible for the granting of a Stamp 4 permission. We find this to be a very disappointing decision as many persons who have worked for many years under the AWS who may have fallen out of the system through no fault of their own are not included in this policy and will be required to continue to  make their own individual cases to the Minister for Justice for Stamp 4 permission.

 

The full announcement from the Department of Justice can be found here:

https://www.irishimmigration.ie/sea-fishers-atypical-working-scheme-update/

 

Information regarding the closure of the Atypical Working Scheme can be found here:

 

https://www.irishimmigration.ie/closure-of-the-atypical-scheme-aws-for-non-eea-crew-in-the-irish-fishing-fleet/

 

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

ISD ANNOUNCE INITIATIVE TO FACILITATE NON-EEA NATIONALS WITH PENDING RENEWAL APPLICATIONS TO TRAVEL DURING CHRISTMAS

ISD ANNOUNCE INITIATIVE TO FACILITATE NON-EEA NATIONALS WITH PENDING RENEWAL APPLICATIONS TO TRAVEL DURING CHRISTMAS

Immigration Service Delivery has recently announced an initiative to facilitate non-EEA nationals travelling during the Christmas period. The Registration Office is currently experiencing delays of 5-6 weeks in processing renewals of IRP cards. ISD has stated that after such renewals are completed, it may take a further two weeks to receive a new IRP card in the post.

 

Due to these delays, the Minister is issuing a Travel Confirmation Notice, requesting carriers to allow individuals to travel on their recently expired IRP where a renewal application for their IRP was submitted before the expiry of their current permission. This initiative has been introduced to facilitate nationals who are required to renew their current permission and who wish to travel internationally during Christmas.

 

Non-EEA nationals may use their current recently expired IRP card to enable them to travel from 9th December 2022 to 31st January 2023, provided an application for renewal was submitted in advance of the expiry date of their IRP card.

 

Those wishing to avail of the initiative must download and print the notice published by ISD, and present it along with their expired IRP card and proof of their renewal application to immigration authorities and airlines if requested to do so.

 

The ISD notice can be found here:

 

https://www.irishimmigration.ie/isd-announces-initiative-to-facilitate-customers-travelling-at-christmas/

 

Further information on this initiative can be found here:

 

https://www.irishimmigration.ie/wp-content/uploads/2022/12/FAQs-Travel-Arrangement-Form-09-December-2022-to-31-January-2023.pdf

 

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

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of O v Minister for Justice [2022] IEHC 617.

 

The case concerned a Nigerian citizen who applied for refugee family reunification for his non-marital partner and three children in Nigeria pursuant to s.56 of the International Protection Act 2015. The applications for his children were granted, however the application for his partner was refused. The applicant sought to challenge this decision by way of judicial review proceedings in the High Court, seeking to quash the decision. The Court refused the application and did not grant the relief sought.

 

The application was refused on the basis that s.56(9) of the 2015 Act only permits unification with a marital partner, whilst the applicant’s partner was not married to him. Non-marital partners are covered by a separate administrative non-EEA Family Reunification policy.

 

The applicant claimed that s.56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the ECHR. He applicant also claimed that the administrative policy would not afford him reunification with his partner because he was unable to comply with its financial requirements. He argued that limiting statutory family reunification to a spouse will unfairly split non-marital families by leaving one parent isolated from the other and their children. The applicant argued that this limitation is contrary to Articles 40.1 and 40.3 of the Constitution on the right to equality and Article 41 family rights, as well as his rights under the ECHR to non-discrimination. The applicant also sought constitutional protection for his right to cohabit.

 

The Court rejected the argument that the applicant was being treated less favourably than a married refugee who has been separated from their spouse. The Court in making this determination considered the Minister’s submissions that the applicant was married to a third party and that this marriage had not been dissolved. The Court was satisfied that the applicant’s status is therefore that of a married person and he could not assert a constitutional right to equality of a non-married person to be treated equally to a married person.

 

The Court did not accept the assertion by the applicant that his non-marital relationship is akin to the marital relationship that is recognised under Irish law. The Court stated that insofar as the applicant contended that the relationship between him and his partner was akin to marriage, it could only be akin to a polygamous marriage, which is not recognised in Irish law.

 

In considering the applicant’s argument that there is a constitutional right to cohabit, the Court rejected that such a right existed. The Court further concluded that no EU rights are engaged in the application of s.56 of the 2015 Act and therefore the ECHR is not applicable.

 

The Court therefore found that it is not unlawful that unmarried partners are not included as family members under s.56 of the Act. The Minister has discretion in assessing the extent of family reunification to be afforded to refugees and is entitled to limit this. The Court found that applicants have a non-statutory procedure which they can use to apply for their unmarried partners, via a long-stay visa application, asking the Minister to disapply financial criteria if necessary. The Court found that the State had not breached the applicant’s constitutional rights by providing a different, and potentially more restrictive, non-statutory administrative policy for non-marital family reunification.

The full judgement can be found here:

https://www.courts.ie/acc/alfresco/d322aab5-cda8-461b-b019-dc363a071c70/2022_IEHC_617.pdf/pdf#view=fitH

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