Tag Archive for: irish citizen

CURRENT EXPERIENCES OF THE IMMIGRATION SERVICE DELIVERY PORTALS

In 2023, the Minister opened the Immigration Service Delivery (ISD) Forms Portal. This portal provides applicants with an opportunity to submit a number of immigration applications to the Minister. This includes an application for renewal of immigration registration, an application for naturalisation for adults and minors and other specific immigration applications including de facto partner applications and applications for extension of student permissions.

In October 2024, the Minister also launched a separate portal, “The Digital Contact Centre”. It appears that the purpose of this portal is for persons to communicate with the Minister in respect of their applications, immigration concerns. However, a number of specific immigration applications are also submitted via this portal, including an application for first time registration and also applications as the parent or spouse of an Irish citizen.

The modernisation of ISD is to be warmly welcomed.

Any progress that can make the immigration system more accessible and easier to navigate for applicants is to be commended and supported.

Applicants are facing a number of issues with these portals as they currently operate.

One of the main issues with the ISD forms portal that are clients are informing us of and we are experiencing ourselves is as follows:

Once an application is submitted via the ISD forms portal, it can no longer be accessed or updated. It is possible to log in and see the data entered, however it is not possible to have sight of the documents uploaded or to amend the application in any way.

When the application is being assessed, the ISD may write to an applicant and ask for further information and documents. If this occurs, the portal application is “re-opened” and access is given to upload the further documents and or information. In many cases this system works smoothly and the documents are uploaded and submitted. However, in many cases , this creates a concerning issue with the application.

If a person needs more time to submit the required documents, perhaps documents need to be requested from other state departments and so on, there is no facility to request an extension of time.

In our experience the portal request closes after a set period of time (sometimes unknown to the applicant) , with no further notice and it is no longer possible to update the application and provide the documents requested.

Very recently, the ISD have stopped operating the email address for the Citizenship unit, which has been the main channel of communication between ISD and applicants  for many years.

Applicants therefore would have no option but to send a letter by post to citizenship or to instruct a solicitor to assist them with the predicament they find themselves in.

Our office has experienced difficulties with submitting further documents, vital to a citizenship application or indeed specifically requested, via post. We have received many responses from ISD  with a direction that documents can only be submitted via the portal- This is not workable if the portal in question has not been reopened .

The move to a portal system is a big change for all parties in this process- applicants, solicitors and the  ISD.

It should be recognised that this is changing and evolving time and applicants should be assisted and facilitated in navigating this new system and there should be a recognition by ISD that this system is in its infancy.

Applicants should not be put at risk that their application might be refused, rejected or deemed ineligible when they have made best efforts to submit a comprehensive application and have tried their upmost to comply with requests via the new portal system.

No applicant should be put at risk of a rejection in these circumstances.

We also look forward to the creation of a third party portal so that solicitors have  a real way to act for their clients on their immigration  applications and are not relying on interim solutions to use portals that have be established for use by individual applicants and not solicitors.

Berkeley Solicitors through our involvement with the Irish Immigration Lawyers Association, have brought our concerns regarding the issues we are encountering with the portal to the attention of the Department and are engaging with the Department towards seeking to improve the system

RECENT HIGH COURT JUDGEMENT- REFUSAL OF TRAVEL VISA FOR EMPLOYMENT PERMIT HOLDER

RECENT COURT OF APPEAL JUDGEMENT – A QUESTION REFERED TO THE COURT OF JUSTICE OF THE EUROPEAN UNION

The Court of Appeal has decided to refer a question to the CJEU in the case of R.S v Minister for Justice [2024] IECA 151, delivered on 21st June 2024.

The question relates to whether the Minister can make a decision/finding pursuant to the 2015 Regulations in relation to marriage of convenience/ fraud after the individual has become an Irish citizen through naturalisation.

The facts of this case surrounded an applicant who obtained an EU Fam residence card based on his marriage to an EU national in 2010 and he later naturalised as an Irish citizen. The applicant later separated and divorced from his EU National spouse.

In 2019, a third-party non-EEA national made an application for a residence permission on the basis that she was the mother an Irish citizen child, to whom the applicant was the father.

This resulted in the Residence Division contacting the EUTR Investigation unit who in turn opened an investigation into the applicant’s marriage to his ex-wife in 2010.

In December 2019 the Minister sent a letter to the applicant proposing to “revoke” his residence card, even in circumstances where at that time he was an Irish citizen.

In February 2020 the Minister revoked the residence card previously held by the applicant on the basis that he had submitted misleading documents and also on the basis that his marriage was one of convenience.

The Applicant reviewed this decision and in September 2020 the decision was upheld on review.  A further review was sought by the applicant, and this was refused.

Correspondence between the applicant’s solicitor and the Respondent ultimately led to the above decisions being withdrawn and replaced with a new decision of February 2022. As the Court noted:

The wording of new decision of 1st February 2022 was different and, significantly, did not purport to “revoke” anything

In the decision of February 2022, the Minister held that the applicant had submitted false and misleading documents and that his marriage was one of convenience. The decision stated in material part:

This marriage was never genuine, and any entitlement or status conferred under the Directive from your marriage to the Union citizen concerned are deemed withdrawn from the outset.”

The High Court found the decision of the Minister to be lawful in that it did not proport to revoke or cancel anything, the fact that the applicant had acquired Irish citizenship did not make him immune to Ministerial enquiries into a grant of permission to him in the past.

The Court of Appeal held there are two key questions in this case:

  • Does the Directive apply to an Irish citizen after he has ceased to be a beneficiary of it by reason of acquiring citizenship?
  • Does the Minister have a “free-standing” power under the Regulations to make certain factual determinations at a time and in a context where there is no possibility of linking the determination to any decision to “revoke, refuse to make or refuse to grant” any right, entitlement or status in accordance with the Regulations?

The Court went on to consider the relevant Case law including Lounes v Secretary of State for the Home Department – In which it was held that once the applicant obtained British citizenship, as she was living in the UK, she was no longer a beneficiary of the Directive as she was no longer outside her member state.

The Court also compared the arguments in the present case to the judgment of Chenchooliah v Minister for Justice and Equality (Case C-488/21), 10th September 2019, where the Directive was still held to apply to the applicant even though it was clear she was no longer a beneficiary of same.

The Minister contends that the Regulations should be read as entitling the Minister to make a determination about a past state of affairs and also having regard to the context to the Regulations, implementing a Directive in which the prevention and detection of fraud and abuse of EU residence rights is an important component

The Court ultimately determined that a question should be referred to the CJEU:

Whether Directive 2004/38/EC applies to a person who previously obtained the benefit of derived residence in a Member State by virtue of being a spouse of an EU national exercising Treaty rights but who has more recently become a citizen in the host State and is no longer the beneficiary of any benefit under the Directive, solely for the purpose of investigating and (if appropriate) making a determination or reaching a conclusion that he engaged in a fraud or abuse of rights and/or a marriage of convenience in the past in order to obtain a benefit under the Directive?

The full judgements in this case can be accessed below.

https://www.courts.ie/acc/alfresco/7bbff9a4-5a97-40a6-a3bb-fe710e9048d4/2024_IECA_151.pdf/pdf#view=fitH