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SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

RE-ENTRY VISAS NOW ABOLISHED FOR ADULT HOLDERS OF IRP/GNIB CARDS

As of 13th May 2019, visa required nationals who hold a valid IRP/GNIB card will no longer need a re-entry visa to travel back to Ireland. An individual will only need to be able to show their IRP/GNIB card and their passport or travel document to airline staff and immigration authorities as evidence of their right to travel to the State.

With this change Ireland has come into line with other EU Member States who rely similarly on residence permits rather than requiring re-entry visas from those holding immigration permission in the State.

This change has been long requested and will benefit an estimated 40,000 persons each year, taking away the need for them to pay a re-entry visa fee and submit their passport or travel document to the Irish Naturalisation and Immigration Service while awaiting the outcome of their application, which could take in and around five weeks to process.

It is important to note however that as minors under the age of 16 years are not issued with an IRP/GNIB card their parent or guardian will still need to apply for a re-entry visa for them to allow them to travel to and from the State. While all other visas must be applied for from outside of the State, an application for a re-entry visa for a minor can be made from within the State.

Further worth highlighting are the Irish Naturalisation and Immigration Service’s instructions that in light of the delays in securing an appointment to register immigration permission at the Burgh Quay Registration Office, if living in Dublin, and the further two week period it may take to receive one’s IRP card, it is advised that visa required nationals intending to travel to and from the State in the first four months of their stay should apply for a multiple entry visa, which will allow for them to undertake travel in the interim period before their IRP card is issued to them.

For further information on these changes and their implications please see the Irish Naturalisation and Immigration Service website here.

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.

HUMANITARIAN ADMISSION PROGRAMME (IHAP) NOW OPEN FOR APPLICATIONS

Berkeley Solicitors, immigration law specialists, welcome the newly announced Humanitarian Admission Programme (IHAP). This programme is undoubtedly a positive development for many of our clients who could potentially benefit under this new scheme.

The Humanitarian Admission Programme 2, also known as “IHAP” allows naturalised Irish citizens, programme refugees, persons with Convention refugee status, and subsidiary protection status to apply for immediate eligible family members to join them in the State between May 14th 2018 and 30th June 2018. The scheme will therefore be closed on the 30th June 2018.

Up to 530 vulnerable family members will qualify for admission under the scheme. Beneficiaries accepted under the IHAP receive Programme Refugee Status from the Minister under the Irish Refugee Protection Programme.

In a press release dated the 12th May 2018 it is stated that the purpose of the scheme is to meet Ireland’s commitments in relation to the ongoing migration crisis. With this in mind, the scheme is limited to beneficiaries in states where they are in the “most vulnerable situations internationally”. In the press release Minister of State David Stanton TD states that:

“The IHAP is a humane and flexible response to the needs of those fleeing high-risk areas and will facilitate their reunion with family members in Ireland. The Programme reaffirms the Government’s commitment and ability to respond positively to humanitarian crises. Persons admitted under this programme will be part of the IRPP and will therefore receive a status in their own right rather than a dependency status on their family member. This is important for their long term integration and sense of belonging in our communities.”

The list of eligible countries is based on the UNHCR Annual Global Trend Reports which lists the top ten major source countries of refugees. INIS in their FAQ on the IHAP instructs that the current list of countries is “subject to change”. Beneficiaries must be nationals of one of the following countries to be eligible under the scheme:

  • Syria
  • Afghanistan
  • South Sudan
  • Somalia
  • Sudan
  • Democratic Republic of Congo
  • Central African Republic
  • Myanmar
  • Eritrea
  • Burundi

Those who are from one of the above eligible States must also fall under one of the categories provided under the Scheme. These are as follows:

  • Adult Child (unmarried and without dependants)
  • Minor Child (where the Minor Child is not eligible for reunification with a sponsor under the terms of the International Protection Act 2015. The Minor Child must be unmarried and without dependants)
  • Parent (where not eligible for reunification with a sponsor under the terms of the International Protection Act 2015)
  • Grandparent
  • A Minor Child for whom the Sponsor has parental responsibility (e.g. Orphaned Niece/Nephew/Grandchild, Sibling) (In certain circumstances, where a Sponsor does not have sole parental responsibility, the consent of the person that shares responsibility will be required)
  • A vulnerable close family member for whom the Sponsor is the primary caregiver and who is not part of another family unit.
  • The Sponsor’s spouse or civil partner as recognised under Irish law (where not eligible for reunification with a sponsor under the terms of the International Protection Act 2015) or the Sponsor’s de facto partner (may be granted to both opposite and same sex partners who have been together in a relationship similar to marriage or civil partnership and have a mutual commitment to a shared life together to the exclusion of all others. The Sponsor must be in a position to provide sufficient evidence of a durable relationship.)

Under the IHAP scheme the Sponsor (i.e. the person residing in Ireland who is inviting a family member in the State) must themselves meet a number of requirements.

  • The Sponsor must have been granted Convention refugee status, programme refugee status or subsidiary protection status in Ireland or be an Irish citizen
  • The Sponsor must be residing in Ireland and complete the IHAP proposal on behalf of the family member they wish to join them in Ireland (i.e. the beneficiary)
  • The Sponsor must be a person of “good character”.

While there are no explicit minimum financial requirements place on sponsors, such as a certain minimum income, nominations will be prioritised where the Sponsor is able to demonstrate that they can provide accommodation for their family member in Ireland. This is due to the ongoing housing crisis in Ireland.

There are no fees that must be paid by the sponsor to make an IHAP application. The sponsor may incur other costs relating to postage or translation for documents, if necessary.

One important point to note is that a proposal for a family member under  IHAP cannot be made if there is an ongoing application for family reunification under the International Protection Act, 2015.

The introduction of IHAP is seen as a welcome change by Berkeley Solicitors. We hope that our clients eligible under this scheme have the opportunity to benefit. For further information on the scheme please see the INIS FAQ on IHAP and the IHAP application form., or contact our office by email or phone.