Tag Archive for: INIS

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

Applications for visas and residence cards for family members of EU citizens pursuant to EU Treaty Rights often require proof that the Applicant is dependent on their EU Citizen family member.

The concept of dependency is not defined in the Citizens’ Rights Directive (Directive 2004/38/EC) or the European Communities (Free Movement of Persons) Regulations 2015. However, case law of the Court of Justice of the EU has established that an Applicant must show that they are not in a position to support themselves, having regard to their financial and social conditions.

Thus, while dependency is often assessed in terms of the existence of financial support between the Applicant and the EU Citizen, it can also arise from social, emotional and medical circumstances.

Several recent judgments of the High Court have shed some light on the importance of social dependency in EU Treaty Rights cases.

The case of Chittajallu v The Minister for Justice and Equality, Record Number 2019/28, in which Berkeley Solicitors were acting for the Applicant, involved a British citizen who submitted a visa application for her dependent mother.

In his judgment delivered on 11th July 2019, Mr Justice Barrett highlighted that the Minister had not properly considered the issue of social dependency arising from the Applicant’s medical circumstances in the initial decision.

Berkeley Solicitors also acted for the Applicant in the case of Agha v The Minister for Justice and Equality, Record Number 2019/374, the facts of which similarly involved a British citizen who applied for a visa for his elderly dependent mother who had serious health issues and was not capable of living independently.

In his judgment of 23rd December 2019, Mr Justice Barrett states at paragraph 6:

“There is a further separate error presenting in this regard, viz. that, in breach of European Union law, the Minister did not have any regard to the particular illness of Mr Agha’s mother and how this impacted on dependence…

As is clear from Jia, at para. 37 (as touched upon in Chittajallu v. Minister for Justice & Equality [2019] IEHC 521, at para. 4): “in order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess, whether, having regard to their financial and social conditions, they are not in a position to support themselves” [Emphasis added]. No such analysis was not undertaken here…”

It is clear from the above High Court decisions that a failure to take into account an Applicant’s social dependency on the EU citizen constitutes a breach of EU law. An analysis of the Applicant’s financial dependency alone will not be sufficient.

In both of the above cases, the Court ruled that the initial refusal was unlawful and remitted the matter to the Minister for fresh consideration.

This is a positive development for family members who are dependent on their EU Citizen family member for reasons other than, or in addition to, their financial circumstances.

Social dependency may arise from factors such as an Applicant’s medical circumstances or the nature of the social and emotional relationship between the Applicant and the EU Citizen.

If you or a family member wish to discuss an EU Treaty Rights application, please do not hesitate to contact our office.

The full judgments will be published shortly on the website of the courts, which can be found here.

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

COURT OF APPEAL JUDGMENT ON MEMBERSHIP OF THE SAME HOUSEHOLD IN EU TREATY RIGHTS CASES

On the 19th December 2019, the Court of Appeal delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality, in which Berkeley Solicitors acted for the Applicants.

The decision is significant for family members of EU citizens who have applications, or are considering making applications, for visas or residence cards based on the fact that they are members of the same household of an EU citizen family member under Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, (‘the Citizens Directive’).

The case concerned the refusal of an EU Fam residence card to the cousin of a British citizen, who had lived as the member of his household for many years in the United Kingdom prior to moving to Ireland.

The central issue before the Court of Appeal was the meaning of the term ‘household of the Union Citizen’  for the purposes of the Citizens’ Directive.

The Applicants argued that the household of the Union citizen consists of those persons who are family members and who reside in the same dwelling as the Union citizen. The Respondent argued that what is to be established is that the household concerned is that of the Union citizen, and that the centrality of the Union citizen in the family living arrangements is to be assessed.

The Applicants also put forward submissions regarding other language versions of the term ‘membership of the same household’ and found that there was no ‘head of the household’  test in those versions.

Ms Justice Baker ultimately upheld the decision of the High Court in finding that the criterion of ‘membership of the same household’ is not simply established where family members live under the same roof. Rather, members of the household of the Union citizen must be those persons who are some way central to the family life of the Union citizen.

The Court held:

“68. It may be more useful to consider the notion of household by reference to what it is not. Persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them.

69. It is not a test of with whom the Union citizen would choose to live, but rather, with whom he or she expects to be permitted or facilitated to live in order that his or her family unit would continue in being, and the loss of whom in the family unit is a material factor that might impede the Union citizen choosing to or being able to exercise free movement rights. That second element, it seems to me, properly reflects the core principle intended to be protected by the Citizens Directive.

70. It may be dangerous to give an example, and I do so by way of illustration only. A family member who had resided in the same house as a Union citizen for many years before free movement rights were exercised might well have become a member of the family with whom there has developed a degree of emotional closeness such that the person is integral to the family life of the Union citizen. That person could be a member of a household because the living arrangements display connecting factors that might, in an individual case, be termed a “household”. If the rights of free movement of a Union citizen within the group are likely to be impaired by the fact of that living arrangement, whether for reasons of the moral duty owed to the other members of the group or otherwise, then the rights under the Citizens Directive fall for consideration.”

The Court found that the EU Citizen’s Free Movement rights where not impeded or restricted by refusing a right of residence to his family member in this case.

The full judgment has been published on the website of the courts and can be found here.

PROPOSED CHANGES TO IRISH EMPLOYMENT PERMIT SYSTEM

The general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 has been published.

This is the result of a review conducted last year by the Department of Business, Enterprise and Innovation on economic migration policy review, which found inflexibilities in the current employment permit system.

The current system is governed by the existing Employment Permit Acts 2003-2014.

Speaking about the proposals, the Minister for Business, Enterprise and Innovation, Heather Humphreys, has said:

“The proposed legislation will increase the agility and responsiveness of Ireland’s economic migration system to meet skills and labour needs, while continuing to safeguard the labour market and support the employment rights of permit holders. I want to modernise the system and ensure that it is capable of adapting to changes in the future as well as fluctuations in demand across the economic cycle.”

The aim of the Bill is to consolidate existing legislation, as the Government believes any further amendment to the existing Employment Permit Acts 2003-2014 would significantly increase the complexity of the current system.

Major changes proposed by the Bill including streamlining the processes for ‘trusted partner’ and renewal applications, and making the system more agile and easier to modify to meet changing economic circumstances, technological advances and process changes as they arise.

Another proposal is to modify the ‘50:50 rule’, which currently requires that 50% of an employer’s staff be EEA nationals before an Irish employment permit may be granted, allowing it be waived in cases where the permit holder would be the sole employee. However, this change is subject to the employer demonstrating that they have made efforts to recruit from within Ireland and across the EEA in the first instance. The 50:50 requirement would resume from the point at which a second employee is contracted.

The Bill also proposes the introduction of new categories of employment permit, namely a Seasonal Irish Employment Permit and a Special Circumstances Employment Permit.

The Seasonal Irish Employment Permit would cater toward those working in the short-stay and recurrent employment sectors. Ireland is an outlier in not offering this type of permit, which would allow individuals to come to the State to work in sectors such tourism, farming and horticulture on a short-term basis.

The Special Circumstances Employment Permit would allow for bilateral, reciprocal agreements between Ireland and other States and could be used, for example, to address a need for a niche, but critically important skillset, for which no formal training is available in Ireland.

The proposals also include an extensive revision of the Labour Market Needs Test, the requirement whereby employers need to firstly advertise vacancies within Ireland and across the EEA.

Ms Humphreys has said:

“The overhaul [of the Labour Market Needs Test] will make it more relevant, efficient, and modernised to reflect current advertising practices. It will also ensure that the test is more targeted and effective in reaching Irish and European jobseekers in the first instance.”

The primary aim of Irish government policy when it comes to the labour market is to promote the sourcing of labour and skills from within Ireland, the EU and other EEA States first and from there look at alternatives from further afield. Permits for highly skilled personnel from outside the EEA can be granted where the requisite skills cannot be met by normal recruitment or training.

The aim of the proposed changes, according to Ms Humphreys, is to enhance accessibility and improve the transparency of the employment permit process while “retaining the core focus of a vacancy led employment permits system focused on meeting the skills and labour needs in the State.”

At present, these proposals are at a very early stage and are subject to change as the Bill moves through the legislative process.

The full text of the general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 can be found here.

 

 

UPDATE TO ELIGIBILTY REQUIREMENTS FOR STAMP 4

INIS RELEASES 2018 ANNUAL REPORT: “IMMIGRATION IN IRELAND STATISTICS”

On the 26th September 2019, the Irish Naturalisation and Immigration Service of the Department of Justice released its annual report for the year 2018 detailing immigration trends in Ireland through statistics.

In the report, INIS found that there was a total of 140,533 visa applications in 2018. The report further clarifies that in 2018, 121,220 persons received positive visa decisions from INIS in 2018 while 16,568 received a negative decision.

This annual release has once again highlighted the concerning increase in refusals of leave to land. INIS reports that 4797 persons were refused leave to land in the State meaning individuals were refused entry at the airport/border. This is an increase from the 3,746 persons refused entry into the state in 2017.

This is a very large number of persons refused leave to land with the top countries to have people rejected being:

  • Albania (622)
  • Brazil (524)
  • South Africa (359)
  • United States of America (232)

Leave to land is governed by Section 4 of the Immigration Act 2004 (as amended) which provides for limited and specific circumstances to which persons can be refused leave to land. Under Section 4(3), an immigration officer retains a right to refuse permission to a non-national where they are satisfied:

“(a) that the non-national is not in a position to support himself or herself and any accompanying dependents;

(b) that the non-national intends to take up employment in the State, but is not in possession of a valid employment permit

(c) that a non-national suffers from a condition set out in first schedule

(d) that the non-national has been convicted of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty

(e) that a non-national, not being exempt, is not the holder of a valid Irish visa;

(f) that the non-national is the subject of- (i) a deportation order, (ii) an exclusion order or (iii) a determination by the minister that it is conducive to the public good that he or she remain outside the State;

(g) that the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality;

(h) that the non-national- (i) intends to travel (whether immediately or not) to Great Britain or Northern Ireland and (ii) would not qualify for admission to Great Britain or Northern Ireland if he or she arrived there from a place other than the State;

(i) that the non-national, having arrived in the State in the course of employment as a seaman, has remained in the State without the leave of an immigration officer after the departure of the ship in which he or she so arrived;

(j) that the non-national’s entry into, or presence in, the State could pose a threat to national security or be contrary to public policy;

(k) that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national”.

There remain serious deficiencies in our immigration system with respect to fairness and the right to have legal representation as a person presenting at the Irish border requesting leave to land.

The absence of legal representation is especially concerning given the seriousness of the decision being made. Refusals of leave to land remains a serious incident in a person’s immigration history. It must be declared for all future visa applications and may be negatively considered in any future immigration matter. Needless to say, being refused leave to enter Ireland at the border can be extremely distressing and traumatising for individuals and in some cases has resulted in persons being detained in Irish prisons!

The increase in the number of persons refused leave to land may be unsurprising given that in 2017, INIS highlighted that enhancing border security was a priority stating that amendments to immigration over last number of years “will allow for arresting, detaining and removing non-nationals who are subject to a deportation order and people who are refused leave to land”, however it is no less alarming.

Although specific, the potentially very wide-ranging power of immigration officers must be exercised in a cautious and restricted manner. Unfortunately, it appears that leave to land refusals are continuing to increase.

As of the 31st December 2018, 142,924 individuals had permission to remain in the State with 2757 being under 18. The Residence Division of INIS received over 14,600 such applications in 2017.

In 2018 there were over 5200 EU Treaty Rights Applications made. The report shed light into trends relating to EU Treaty Rights Reviews stating that 1092 review applications were submitted in 2018 with 134 review cases being granted.

The report also addressed citizenship applications confirming that, similar to the 2017 figures, 8225 persons received Citizenship Certificates in 2018, with 1183 of those being minors.

Of the 984 Family Reunification applications received in 2018, 527 were Syrian nationals. However, only 211 applications were determined favourably with just 133 minors at time of decision receiving positive decisions.

 

The 2018 Annual INIS Report can be read in full here.