Tag Archive for: INIS

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

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.

SUPREME COURT DELIVER JUDGEMENT IN IMPORTANT CASE CONCERNING THE ASSESSMENT OF APPLICATIONS FOR LEAVE TO REMAIN

RECENT HIGH COURT JUDGEMENT RELATING TO VISA REFUSAL FOR HUSBAND OF IRISH CITIZEN

Justice Phelan of the High Court has recently delivered judgement in the case of S.M and T.A v Minister for Justice [2022] IEHC 611

 

This case involved a long stay visa application made by the husband of an Irish citizen to join his wife in Ireland. The visa application was refused by the Minister and was also refused on appeal.

 

The couple challenged this refusal in the High Court by way of Judicial Review.

 

The couple were unsuccessful in their case before the High Court.

 

The visa application was refused for multiple reasons. The Court found that the Minister had failed in a number of respects in the assessment of the visa application.

 

The Irish Immigration Service Delivery consider visa applications in line with a Policy Document on Non, EEA family reunification, December 2016 (https://www.irishimmigration.ie/wp-content/uploads/2021/04/Policy-document-on-Non-EEA-family-reunification.pdf)  . Under the terms of this policy, Irish citizens are asked to have earned a certain income within the three  years prior to the visa application for their family member. In this case, the Irish citizen sponsor did meet this financial  criteria.

 

Despite this, the Minister found that granting the visa application would likely cost the Irish State money. It was found that the bank balance of the sponsor was low, and this caused this risk. The Court found there had been a lack of fair procedures in respect of the handling of  this aspect of the case. The Irish citizen sponsor in fact had savings but had not provided evidence of same as it was not obvious that they would be required when the financial criteria had been met.

 

The Court also found that the Minister had been incorrect in finding that there had been no explanation with regards to discrepancies on official documents and dates of registration on such documents. The applicant and sponsor had provided explanations. The court found that the correct approach of the Minister  should have been to acknowledge that an explanation had been provided, but could then have assessed if this explanation was to her  satisfaction or not.

 

It was brought to the Court’s attention by the applicants that a previous visa refusal has to be declared going forward and can have a negative impact on a person’s immigration history. The Court considered quashing the decision with this in mind, but ultimately held that there was no unreasonable prejudice to the applicants, as they could re-apply providing the documents that were found to be lacking and with new financial documentation. The Court found that this application would be made on better facts and did not believe there was an unreasonable prejudice to the applicant in having to declare a previous visa refusal.

 

The applicants also brought it to the Court’s attention that the Irish citizen sponsor was pregnant and also the security and safety circumstances in the home country of the sponsor had deteriorated. The Court found that this was not put to the Minister during the application  prior to a decision being made and therefore could not be properly found as a reason to find fault with the decision at this stage.

 

The Court ultimately held that due to the myriad of reasons the application for the visa had been refused, the deficiencies in the decision-making process as specifically  identified by the Court did not amount to the decision being unlawful.

 

The Court held that even if these matters had been handled in the proper way the visa application would still have been refused for other reasons, including a failure to provide specifically requested documents and the quality of some official documentation.

 

The Court stated that a fresh visa application to address these issues was a suitable way forward for the applicants.

 

This judgement highlights the importance of providing all requested documents in a visa application, following all ISD published guidelines in respect of documents and attestation of certificates and providing all relevant information in the visa application.

 

The Judgment also appears to  indicate that were an applicant meets the financial  criteria of the policy document, it would only be fair that an applicant be put on notice that the Minister intends to  refuse the application on those grounds to allow them to address these  concerns prior to decision being made.

 

The full judgment can be found here:

 

https://www.courts.ie/viewer/pdf/fa5fae37-2d5d-4ba3-bd24-ef1099537524/2022_IEHC_611.pdf/pdf#view=fitH

 

Berkeley Solicitors is highly specialised in preparing and submitting join family visas. Please do contact us if you need advice or assistance with such an application.

 

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.

 

UPCOMING CITIZENSHIP CEREMONIES

PASSPORT SERVICES TO BE CONSIDERED ESSENTIAL UNDER NEW PLANS BROUGHT TO CABINET

Today, new proposals will be brought to Cabinet by the Minister for Foreign Affairs which will deem the production of passports an essential service.

The majority of passport services have been suspended since December in line with the Level 5 restrictions.

It is planned that the Minister will ask the Cabinet to consider passport services an essential service in order to allow the backlog to be efficiently cleared.

Approximately 89,000 people have been affected by delays in the processing of passport applications including 44,000 domestic applications and 45,000 from outside the State.

The issuing of a passport to Irish citizens is provided for under the Passports Act 2008 which states:

‘a person who is an Irish citizen and is, subject to this Act, thereby entitled to be issued with a passport.’

Berkeley Solicitors therefore believes that the failure to issue passports to Irish citizens is contrary to this Act.

This matter is of great concern and Berkeley Solicitors has received many queries from those who have been unable to receive a passport for travel or identification purposes.

In deeming the production of passports an essential service, it is hoped that this backlog can be cleared in a matter of weeks.

Berkeley Solicitors are happy to see this news today and we hope that it will benefit those who have been affected.

MINISTER FOR JUSTICE ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS

On 26th March 2021, the Minister for Justice Helen McEntee published a notice announcing a further temporary extension of immigration and international protection permissions. This extension applies to immigration and international protection permissions to reside in the State that are due to expire between 21st April 2021 and 20th September 2021.

It applies to all persons with a current valid permission, whether pursuant to domestic law or powers of the Minister, or pursuant to Directive 2004/38/EC (the EU Free Movement Directive).

All such permissions are automatically renewed by the Minister to the 20th of September 2021.

Any permission that was renewed by the previous notices and was due to expire between 21st April 2021 and 20th September 2021 is automatically renewed by this notice until 20th September 2021.

The automatic renewal is on the same basis as the existing permission and the same conditions will continue to apply.

Announcing the measure, the Minister for Justice commented:

“As the COVID-19 situation continues to evolve, I want to reassure people whose immigration permissions are due to expire shortly that your legal status in the country will continue to be maintained. To do this, I am introducing a further automatic extension to 20 September 2021 for anyone already holding a valid permission.

“This extension will benefit those who cannot get an appointment to register or renew an existing permission. However, I encourage anyone who can renew, particularly Dublin-based customers who can use the online system, to do so and not to wait until September.

The notice also confirms that the Registration Office in Burgh Quay remains closed due to Covid-19 restrictions. Persons who were issued with appointments for first time registrations will be contacted directly by the Immigration Service and they will be prioritised for appointments once the Public Office can safely reopen.

The notice can be read in full here.

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

UPCOMING CITIZENSHIP CEREMONIES

MINISTER FOR JUSTICE ANNOUNCES CHANGES TO REQUIREMENTS FOR CHILDREN APPLYING FOR IRISH CITIZENSHIP

On 23rd March 2021, the Minister for Justice, Helen McEntee, announced that she will make it easier for children born here, whose parents are not Irish citizens and who are not entitled to citizenship at birth, to gain Irish citizenship themselves.

The current policy is that a child born in the State, but who is not entitled to citizenship by birth, needs to be resident in Ireland for five of the previous eight years before they can apply for citizenship.

Minister McEntee announced that she intends to reduce the residency requirements for such children from five years to three years.

These changes will be contained in the upcoming Civil Law (Miscellaneous Provisions) Bill 2021, which is expected to be submitted to Government in the coming weeks.

Once this legislation comes into force, the number of years a minor must be resident in Ireland will now be two years out of the previous eight, in addition to the requirement to have one year’s continuous residence immediately prior to their citizenship application.

Announcing this step, the Minister for Justice commented:

“The granting of Irish citizenship is a privilege and an honour which is recognised by the thousands of people who apply every year. It is my hope that reducing the amount of time children of non-Irish nationals born in Ireland have to wait before being eligible for citizenship will provide comfort and reassurance to many families across the country.

 This amendment provides increased security for children where a parent subsequently falls out of permission as the child will be entitled to Irish citizenship and will therefore be an EU citizen with the right to remain in the State with a non-EEA national guardian or parent.

However, it will not broaden the categories of children who are entitled to citizenship and this amendment will only apply to the children of those parents who are legally resident in the State. Children born here to non-national parents who have three years prior residency will continue to be Irish citizens from birth.”

This is a welcome development which will allow children who are currently on a pathway to citizenship to attain this status at a much earlier stage.

The full announcement can be read here.

If you or a family member have any queries about applying for Irish citizenship, please contact our office.

NEW VISA AND PRECLEARANCE APPLICATION SUSPENSIONS EXTENDED

On 29th January 2021, a notice was posted on the Department of Justice website confirming that new measures had been imposed from the 29th January 2021, including the cessation of accepting new visa or preclearance applications from all countries.

On 4th March the Department of Justice website update the notice and has confirmed that these measures have now been extended to at least the 5th April 2021. It is understood that the situation will continue to be reviewed. We understand this is very upsetting news for many of our clients.

The Department are continuing to process applications submitted before the 29th January 2021.

However, the notice further states that:

“For applications which were received prior to January 29th, these will continue to be processed. However, for successful applications, unless your application meets the Emergency/Priority criteria set out above, a visa or preclearance approval letter will not issue until such time as these restrictions have been lifted. You will be notified if your application is successful. Refusal letters for unsuccessful applications on hand will continue to be issued.

We continue to accept and process appeals. However, for successful appeals, unless your appeal meets the Emergency/Priority criteria set out above, a visa or preclearance approval letter will not issue until such time as these restrictions have been lifted (we will notify you that your appeal was successful). Refusal letters for unsuccessful appeals will continue to be issued.”

Therefore, should your visa or preclearance application be approved during this period, the visa or preclearance approval letter will not be issued until restrictions have been lifted.

Priority or Emergency cases will continue to be processed online during this extension in the normal manner and the categories of applications considered to be priority or emergency has remained the same.

The full list of applications currently falling in the above category can be found here.

The notice is available to read in full here.

If this notice affects you or your family please get in contact with us to discuss your case.

UPDATE ON PROMISED SCHEME TO REGULARISE STATUS OF UNDOCUMENTED MIGRANTS

The Minister for Justice Helen McEntee is due to publish her Justice Plan 2021 today, the 22nd February 2021.

The plan contains more than 200 actions which are to be implemented in the next 12 months, including the promised regularisation scheme for undocumented persons.

According to an article in The Journal, the scheme is expected to launch in the autumn and applications will be accepted by the end of the year.

The Minister for Justice was quoted as saying:

“We are all familiar with the plight of the undocumented Irish who have built their lives in the United States but have not regularised their status, even though they are an integral part of their communities. 

We must acknowledge there are thousands of people here in Ireland in a similar position: who have started families here, work here and contribute so much to our society but who want to regularise their position with Irish authorities.

The scheme will be open to applicants by the end of the year and could benefit an estimated 17,000 people, including 3,000 young people or children.”

Berkeley Solicitors welcomes the news that the Department of Justice is prioritising this important issue and we look forward to the scheme being published.

As soon as the intended scheme is published, we will post a further update on this blog.

The full article can be read here.

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

NEW VISA AND PRECLEARANCE APPLICATIONS SUSPENDED

On 29th January 2021, a notice was posted on the Department of Justice website noting that the Minister for Justice had imposed several new measures with regard to travel to the State. The Notice stated that it is currently against the law for any person to travel within Ireland for non-essential purposes outside their 5km radius, and that:

“The strong advice therefore is that everyone, regardless of their nationality or visa/preclearance status, or where they started from, who cannot provide proof of an essential purpose to travel to or within Ireland, should not travel to Ireland.”

The notice states that from the 29th January 2021 the Department is temporarily ceasing the acceptance of new visa/preclearance applications. This notice states that any applications made online will remain valid but a decision will not be made on these applications until such time as restrictions have been lifted.

 “Increasing travel restrictions and the measures introduced as part of the Government’s efforts to interrupt the transmission of COVID-19 means that travel may not be possible and even if possible is not advisable unless absolutely essential.”

Priority or Emergency cases will continue to be processed online in the normal manner with specific instructions for submission detailed on the summary page, at the end of the application.

The full list of applications  currently falling within this category are as follows:

  • Workers or self-employed persons exercising critical occupations including healthcare workers, frontier and posted workers as well as seasonal workers as referred to in the Guidelines concerning the exercise of the free movement of workers during the COVID-19 outbreak;
  • transport workers or transport service providers, including drivers of freight vehicles carrying goods for use in the territory as well as those merely transiting;
  • patients travelling for imperative medical reasons;
  • pupils, students and trainees who travel abroad on a daily basis and Third-country nationals travelling for the purpose of 3rd level study;
  • persons travelling for imperative family or business reasons;
  • diplomats, staff of international organisations and people invited by international organisations whose physical presence is required for the well-functioning of these organisations, military personnel and police officers, and humanitarian aid workers and civil protection personnel in the exercise of their functions;
  • passengers in transit;
  • seafarers;
  • journalists, when performing their duties.

The list of priority/ emergency visa has been amended from the previous visa suspensions during last year.

Of particular note is the fact that applications for visas/ pre clearance submitted pursuant to Directive 2004/38/EC and the European Communities ( Free Movement of Persons) Regulation 2015 are not currently listed as priority and based on this published note alone  would appear to be suspended.

In addition to the above, the Minister signed an order imposing new visa requirements on passport holders from a number of South American countries and South Africa. The order came into effect at midnight on the 27th January 2021. In addition to the existing visa required countries, nationals of the following countries are now visa required nationals:

  • Argentina
  • Bolivia
  • Brazil
  • Chile
  • Colombia (transit visa now required – this country is already subject to entry visa requirements)
  • Ecuador (transit visa now required – this country is already subject to entry visa requirements)
  • Guyana
  • Paraguay
  • Peru (transit visa now required – this country is already subject to entry visa requirements)
  • South Africa
  • Suriname (transit visa now required – this country is already subject to entry visa requirements)
  • Uruguay

 

DEPARTMENT OF JUSTICE ANNOUNCES EU TREATY RIGHTS AND DOMESTIC RESIDENCE APPLICATIONS CAN BE SUBMITTED ELECTRONICALLY DURING COVID-19 RESTRICTIONS

On 15th January 2021, the Department of Justice published an updated notice regarding the submission of certain immigration applications during Covid-19 restrictions.

The notice confirms that as a temporary measure between Monday 18th January 2021 and Friday 30th April 2021, both EU Treaty Rights and Domestic Residence applications can be submitted by email with copies of supporting documentation.

In normal circumstances these applications need to be submitted by post with hard copy documents.

Any original documentation that is required for the application may need be submitted by post at a later date. The notice further states that documents should be submitted in PDF format.

This is a welcome development which will simplify the application process during the current Covid-19 lockdown.

The full notice can be read here.

If you have queries about EU Treaty Rights and Domestic Residence applications, please do not hesitate to contact the office.

NEW IMMIGRATION SCHEME FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS FOLLOWING END OF BREXIT TRANSITIONAL PERIOD

On 23rd December 2020 the ISD published the Minister’s new scheme in relation to Non-EEA Family Members of UK Citizens intending to reside in the State from 1st January 2021 onwards.

The rights of British citizens to reside in Ireland remains unchanged. The rights of family reunification with Non-EEA family members has now changed dramatically.

British citizens who exercised their rights of free movement to Ireland prior to 31.12.20 will continue to hold rights to family reunion equivalent to those provided for by Directive 2004/28/EC and the European Communities (Free Movement of Persons) Regulations 2015.

British citizens who have moved to reside and work in Ireland and who wish to be joined by their Non-EEA family members from 1st January 2021 onwards will have their family members applications considered and assessed under this newly published scheme.

A key point to note is that all applications are to be made from outside of the State regardless of an applicant’s nationality. This is a fundamental difference to applications from family members of Irish and other Non-EEA family members- applicants from “visa required” countries apply for visas whilst remaining outside the State, applicants from “non visa required” countries can travel to the State and make their application for entry at the airport. For non-EEA family members of British citizens, a visa application must be made for visa required nationals and a preclearance application is to be made for non-visa required applicants.

The policy specifically confirms that an applicant currently in the State on visitor permission cannot apply from inside the State for a change to a long-term permission.

Where a non-EEA national holds a separate immigration permission within the State for the purpose of study, work, etc., and subsequently becomes the spouse/civil partner/ de facto partner of a British citizen, a change of status request may be made.

The INIS Policy on Non-EEA Family reunification, last updated in December 2016 continues to apply to the non-EEA family members of Irish citizens and legally resident Non-EEA nationals.

This new policy specifically relates to non-EEA family members of British citizens.

There are no minimum Irish residency requirements for UK citizens seeking to sponsor a specified non-EEA national family member.

Financial thresholds:

For all categories of applications:

In order to sponsor a specified non-EEA national family member, a UK citizen must not have been totally or predominantly reliant on social protection benefits in the State or to equivalent benefits in another State for a continuous period of at least 2 years prior to the application.

Applications involving spouses/ partners only:

The WFP does not apply in the case of a married couple, civil partner / de facto partnership where there are no children and consequently a minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.

Applications involving minor children/ dependent children up to the age of 22 of British citizen or partner/spouse of British citizen:

In addition, the sponsor must have earned a gross income in each of the 3 previous years in excess of that applied by the Department of Social Protection (DSP) in assessing eligibility for Working Family Payment (WFP).

4.6 A sponsor who wishes to reside with their dependent children in the State requires the net assessable income per week for their family size as set out by the Department of Social Protection (DSP) in assessing eligibility for the Working Family Payment, as published on that Department’s website. The sponsor should comply with those limits including with respect to any changes to the WFP as published at (http://www.welfare.ie/en/Pages/Working-Family-Payment-Op.aspx.)

Applications for dependent parents (aged 66 and over)

A sponsor will be required to have earned in each of the 3 years preceding the application, an income after tax and deductions of not less that €60,000 per annum in the case of one parent. €75,000 per annum applies where two parents are involved.

The expectation is that this minimum level of income will be maintained for the duration of any permission granted under this Scheme. Where such income levels are not maintained, permission may not be renewed under the Scheme. At the date of application, the sponsor is also required to show that he/she is capable of earning a sufficient level of income to support his/her dependent family members for the duration of their proposed residence in the State.

Eligible applicants

British citizens moving to Ireland from 1.1.21 onwards no longer have the legal entitlement to apply for entry and residence for their wider dependent Non-EEA family members and members of their households. Eligible family members are specifically listed under the Scheme and the immigration stamp to be granted to the applicant if successful are also outlined:

  • Spouse, (Stamp 4D)
  • civil partner, (Stamp 4D)
  • de factor partner (2 years cohabitation required), (Stamp 4D)
  • minor children, (Stamp 3 up to age of 18, Stamp 4D at age of 18 “upon application”).
  • children between the ages of 18 and 22 in certain circumstances of dependency (also applies to the children of the spouse/ civil partner and de facto partner of British citizen) (Stamp 4D)
  • elderly dependent parents of British citizen or spouse/partner of British citizen (must be 66 years of age of older), (Stamp 0).

The policy is silent on the conditions of Stamp 4D permission and the INIS webpage has not yet been updated to outline the conditions of Stamp 4D permission and any material differences between Stamp 4D and Stamp 4.

Other additional requirements:

There are also additional requirements, not required under the 2016 INIS family reunification policy document, namely the requirement for the applicants to have health insurance in place to commence from the date of entry to the State and the requirement to provide a police clearance certificate for any country resided in for in excess of 6 months over the previous 5 years.

Fees are payable in respect of applications under this scheme, €60 per visa/ pre clearance application and the registration fees of €300 will be applied to successful applicants.

Full details on the scheme can be found via the below:

http://www.inis.gov.ie/en/INIS/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf/Files/policy-document-brexit-scheme-non-eea-family-british-citizens-seeking-immigration-permission.pdf

http://www.inis.gov.ie/en/INIS/Pages/joining-your-uk-national-family-member-in-ireland

Please get in contact if you or your family are impacted by this new scheme.