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UPDATE ON CITIZENSHIP APPLICATIONS FOLLOWING THE JONES RULING

Further to our recent blog on the High Court’s findings in the case of Jones v The Minister for Justice and Equality, which can be read in full here, the Irish Naturalisation and Immigration Service of the Department of Justice have published a notice addressing the judgment and the concerns it has raised.

The Court had found in Jones that the law governing eligibility for naturalization as an Irish citizen requires ‘continuous residence’ in the year prior to application and that ‘continuous residence’ is defined as per the generally accepted understanding and dictionary definition of ‘continuous’, with the implication, therefore, that even one day’s absence from Ireland in the year prior to application will break the continuous residence requirement and render a person ineligible to apply for naturalization.

This judgment has understandably caused deep concern and worry for many and in response the INIS has now issued a statement providing the following:

“We are aware that the judgment in this case has given cause for concern and may have been upsetting for many people who are in the citizenship process. We want to assure you that we are taking all appropriate steps to remedy the situation as quickly as possible. The best interests of applicants and future applicants are foremost in our considerations.”

For those planning on submitting an application or who already have an application pending, the Department goes on to confirm that it is continuing to receive and process applications as usual and it emphasises that that they are not advising current applicants or future applicants to cancel any current or future travel plans in light of the judgment.

The Department advises that anyone who is planning on applying for naturalization continue preparing their application, collecting the necessary documentation and submit this together with a complete application form, stating that once they have formulated a solution to address the implications of the ruling they will be in touch with applicants should any further information be required.

The Department confirm that preparations are still going ahead as planned for the upcoming Citizenship Ceremony in September.

Importantly, the Department also state that they “do not believe that this ruling has consequences for anyone who has already obtained citizenship under the Act”. This will hopefully come as a reassurance to many who are concerned that their citizenship may be in question following this judgment.

Finally, the Department confirms that they are working to find a solution to address the ruling as a matter of urgent priority and that they will post on their website as updates occur.

We will be posting about any further developments from the Department as they arise and should you have concerns about your case in the meantime please do not hesitate to contact us.

The INIS statement can be read in full here.

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.

IMPORTANT UPDATE ON BREXIT AND THE RIGHTS OF NON-EU/EEA FAMILY MEMBERS OF BRITISH CITIZENS

In the face of the uncertainty and worry facing many in light of the ongoing Brexit deliberations, the Department of Justice has, on the 29th of March 2019, published a communication aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen, in order to provide an update on the approach they intend to take in the event that the UK leaves the EU in a so called ‘no-deal’ scenario.

The communication defines no-deal as referring to circumstances where there is no further extension of the negotiating period and the UK does not ratify the Withdrawal Agreement before the 12th April 2019, in which case it states there will be no transition period and EU law will cease to apply to and in the UK as of 11pm (midnight CET) on that day.

Alternatively, if a deal is reached, according to the Department’s communication, the provisions of the Withdrawal Agreement on Citizens Rights will apply and EU law will only cease to apply in and to the UK following the transition period of 21 months, up until the 1st of January 2021.

The information note addresses two groups of persons in contemplation of a no-deal Brexit; those with an EU treaty rights application submitted and pending and those holding a valid Stamp 4 EUFam residence card on the 12th of April 2019.

With respect to those who have an application that is still being processed, the information note provides no further information other than to state that such persons are not required to take any action at this time.

For those who are currently holding a valid Stamp 4 EUFam residence card, the information note seeks to reassure that you do not need to worry about losing your right to residence in the State in the case of a no-deal scenario.

It states that, although in a no-deal scenario EU law, in particular the provisions of the European Communities (Free Movement of Persons) Regulations 2015, will no longer apply to you, the Irish government is currently putting in place arrangements to allow a transfer under domestic immigration provisions, which will provide for your continued residence in the State.

It is further stated that the aim of the arrangements being put in place is that you will retain, as far as possible, similar rights to those you have held as the holder of a Stamp 4 EU Fam residence card, including with regard to access to the labour market.

The Department states that they are currently in the process of putting in place a communication strategy that, in the case of a no-deal scenario, will include directly contacting individuals who will be affected by the above.

Further, addressing the matter of UK nationals coming to the State after the 12th of April 2019, if no deal has been made and there is no extension of the negotiating time, the Department provides no information other than to state that they will be issuing further updates on their website in this regard.

The note is also silent in relation to family members of British/UK citizens who have applications for entry visas to the State pending with Irish Embassies/ Visa Offices abroad and the INIS visa office, Dublin. It is unclear as to what the status of such applications will be in the event of a no deal scenario.

If you think you or your family members may be affected by Brexit it is advisable to regularly check the Department’s website, which they state will be updated as developments continue. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

The full text of the information note can be found here. (http://www.inis.gov.ie/en/INIS/Pages/information-note-on-non-eea-family-member-of-uk-citizens-seeking-eu-treaty-rights )

NEW PRACTICE DIRECTION FOR ASYLUM AND IMMIGRATION CASES IN THE HIGH COURT

A new practice direction on asylum and immigration cases issued by President of the High Court Mr Justice Peter Kelly on the 17th December 2018 has created significant changes in the Asylum and Immigration court, and imposed significant new obligations on both solicitors and applicants.

Practice Direction 81 came into force on the 1st January 2019 and applies only to cases on the Asylum and Immigration list. The obligations imposed by High Court Practice Direction 81 are significant and wide-ranging.

Following the issuance of this practice direction, there is a requirement on all applicants to disclose a substantial amount of information and documentation to the Court regarding their case, including details of all previous immigration applications made by any applicant or their family member in Ireland or any other country and details of any previous or current civil or criminal proceedings. This is the case even when the applicant’s family members are not involved in the Judicial Review proceedings.

 

Under the Practice Direction all adult applicants are required to submit a further affidavit providing the information as requested in the Practice Direction. There is also a requirement that the applicant’s solicitor swear an affidavit in relation to the proceedings.

 

The Practice Direction requires the following to have been completed in respect of every new asylum and immigration case initiated after the 1st January 2019.

  • Provide the Court with all relevant material facts by way of a sworn affidavit
  • Provide a full account of the applicant and relevant family member’s immigration history, to include an account of any applications made to the Department of Justice or any other immigration or protection authority both in Ireland or in any other country – this would include previous visa or immigration applications to any State.
  • Exhibit the full immigration file for all immigration/protection applications of every applicant made both in Ireland and other countries. If such documents are not exhibited, a full explanation as to why they have not been exhibited and provide an outline of what attempts have been made to acquire the documents
  • Draw the Court’s attention to any “significant matter of fact adverse to the applicant’s case”
  • Swear that all previous representations made to the Department of Justice or any other immigration authority have been disclosed, or if not, to explain why not
  • Swear that all previous statements or representations made to the Department of Justice or any other immigration authority for the applicant and family members is the truth in every respect, or if not, particularising the extent to which any such statements or representations are untrue;
  • Swear that all statements in the Statement of Grounds are true in every respect, or if not, particularising the extent to which they are not true;
  • Swear that the applicant is aware that it is an offence of perjury to make a statement in any affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading.
  • Identify the applicant’s religion and confirming that the grounding affidavit has been sworn in a specified manner recognised by that religion
  • Swear that the contents and implications of the averments of verification, all statements in the statement of grounds and the details of all previous claims and representations made by or on behalf of the applicant or any member of his or her family, or any solicitor on behalf of any of them, have been fully explained to the applicant by his or her solicitor, and that the applicant fully understands same
  • Specify the language that the applicant understands and confirming that the applicant fully understands the affidavit and its exhibits in the language in which it is sworn.
  • Exhibit any document in a language other than English with a translated document by official translation company
  • Disclose any criminal offences/convictions/proceedings in Ireland or any other country
  • Disclose if the applicant has issued any legal proceedings in any immigration/criminal/civil matter in Ireland or any other country
  • Swear and file a further affidavit in respect of any new material relevant to the court subsequent to the grounding affidavit
  • Attend the substantive hearing of the case in person if ordinarily resident in the State, and if required to orally confirm the averments of verification set out in the affidavits.
  • Applicants may be required to complete and submit to the court checklists of the requirements in the Practice Direction as may be required by the Judge from time to time

 

Berkeley Solicitors has recently contacted all clients who have current Judicial Review cases active in our office to explain the new requirements imposed by the practice direction. If there are any further developments on the new Practice Direction there will be a further update on the Immigration Blog and clients will be contacted.

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

VISA DECISIONS AND WAITING TIMES

For most visas, the Department indicates that you can expect a decision within eight weeks after it was received by the Irish Visa Office, Embassy or Consulate you sent it to. However, in the experience of our office, most visa applicants experience much long processing periods on their visa applications.

According to information on the INIS website, as of July 3rd 2018, business and employment visa applications received by the 11th of June 2018 are currently being reviewed.

Join family applications received by the INIS offices on the 7th of February 2018 are currently being reviewed.

According to the INIS website, applications which take longer than average if you have not submitted the necessary supporting documentation, your supporting documentation needs to be verified, because of personal circumstances, for example if you have a criminal conviction. Processing times can change during the year, for example before holiday periods.

Also, according to the INIS website, if the sponsor for the application in Ireland is an Irish citizen they aim to process your application within 6 months after they have receive all the necessary documentations. If the sponsor  in Ireland is entitled to immediate family reunification they also aim to process the application within 6 months after they receive all your necessary documents. They indicate that all other sponsors applications are aimed to be processed within 12 months after receiving all the necessary documentations.

In the experience of Berkeley Solicitors, some applications for a Join Family visa take much longer than the five month period suggested on the INIS website.

Depending on which Embassy the application is being processed, many join family visa applications take up to one year or longer.

We are aware of a number of visa applicants who have waiting over two years on their first instance decision, and have issued court proceedings due to the delay.

At Berkeley Solicitors, we do our best to assist our clients through this lengthy visa application process, and where necessary we can advise on issuing proceedings due to unreasonable delay.

IRELAND’S POPULATION GROWTH FIVE TIMES EU AVERAGE

According to new figures Ireland’s population growth was more than five times the EU average in 2017. The number of residents in total in the Republic of Ireland rose by 53,900 last year to nearly 4.84 million, an increase of 1.1%. The EU average is a staggering 0.2% in comparison. Ireland had the fourth highest rate of population growth within the EU in the year 2017. However, Ireland holds the distinct title of having the highest birth rate of any EU member state with 12.9 births per 1,000 population.

The only other countries to have experienced higher and more drastic rates of population growth are Malta, Luxembourg and Sweden. A factor contributing to the increase in figures for these countries comes from the impact of immigration in those countries. With this in mind Ireland had the highest rate of natural increase. This meaning there was an excess of births over deaths in Ireland in 2017. This is not the case for 13 Eu member states such as Germany, Italy, Spain and Finland where the death rates outweigh the birth rates. The EU’s overall natural population falling.

Ireland has the youngest population of all Europeans as well as retaining its position as having the lowest death rate in the EU. The findings show with 6.3 deaths per 1,000 population compared to the average of 10.3 deaths per 1,000 in the year 2017. Overall the population of the EU increased in 2017 from 511.5 million to 512.6 million, an increase of 0.2%. The CSO has released its prediction that Ireland’s population will continue to grow until 2051 when it will reach almost 6.7 million.

Berkeley Solicitors

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.

 

FAMILY REUNIFICATION FOR NATURALIZED REFUGEES

On the 26th February 2018, Mr Justice Humphries delivered his judgement in the three test cases concerning the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees.

The cases were chosen to represent a larger number of cases currently in the High Court, all challenging the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees. These decisions were issued by the Minister contrast to the former policy to accept that naturalized refugees continued to have the rights to family reunification pursuant to the 1996 Refugee Act. An internal policy change implemented by the Minister, without notice to the applicants, resulted in the refusal of a large number of applications in circumstances where they would have previously been granted family reunification.

The Minister argued that a refugee ceases to be a refugee on acquiring Irish citizenship pursuant the definition of a refugee in national and international law, and a formal statutory provision for the revocation of their refugee status is not required.

The applicants argued that a formal withdrawal or cessation of refugee status is required by statutory provision, and while this is implemented in the International Protection Act 2015, it was not implemented under the Refugee Act 1996 as amended.

Mr Justice Humphries found in favour of the State, indicating that the cessation of refugee status is declaratory in nature, and refugees who become naturalized automatically cease to be a refugee, thus losing their refugee rights to family reunification.

The High Court decision is now the subject of an appeal to the Court of Appeal. We will post further updates on this case when there are any developments in the Court of Appeal.

Berkeley Solicitors