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2,000 PEOPLE FROM OVER 100 COUNTRIES CONFERRED WITH IRISH CITIZENSHIP

Congratulations to the almost 2,000 people who were conferred with Irish citizenship at ceremonies in Co. Kerry on Monday 9th December 2019.

We especially wish to congratulate a number of our clients who have recently received positive naturalisation decisions.

The new citizens are originally from 103 different countries, with over a quarter originating from Poland and the United Kingdom.

The ceremonies took place at the Gleneagle INEC in Killarney and were presided over by retired High Court judge. The Minister for Justice, Charlie Flanagan, and Minister of State for Equality, Immigration and Integration, David Stanton, were also in attendance.

Such ceremonies had been placed on hold following the High Court ruling in the Jones case in July 2019 that anyone applying for citizenship could not spend a day outside Ireland in the 12 months before applying.

Last month the Court of Appeal overturned this ruling, calling it “unduly rigid” and “unworkable”.

Minister Stanton described the ceremony as a major life event for the candidates, stating:

“Ultimately it’s about building a society where we all live in harmony while, at the same time, respecting our cultural and religious differences… The possibilities open to you in Ireland today are almost limitless. You are now beginning a new journey and a new phase in your life by becoming Irish citizens.”

Approximately 127,000 people have received Irish citizenship in the last 18 years. If you or a family member wish to discuss applying for naturalisation, please do not hesitate to contact our office.

 

 

COURT OF APPEAL JUDGEMENT IN THE JONES CASE

The Court of Appeal have delivered their much-awaited judgement today in the case of Jones v Minister for Justice and Equality.

Applications for naturalisation have been on hold since a judgement from the High Court in July 2019. The High Court found that a person is not eligible for naturalisation as an Irish citizen, if he or she had left Ireland at all, even for one day, in the year prior to their application.

The High Court held that an absence of even one day breaks the applicant’s requirements to have one year “continuous residence” in the year immediately prior to the application.

In dealing with the High Court’s finding the Court of Appeal held that this was not a correct interpretation of Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended).

The Court of Appeal held as follows:

The High Court judge erred in law in interpretation of the term “continuous residence” provided by Section 15(1)(c ) of the 1956 Act. The construction is unworkable, overly literal, unduly rigid and gives rise to an absurdity. “Continuous residence” within the meaning of the sub-section does not require uninterrupted presence in the State throughout the entirety of the relevant year nor does it impose a complete prohibition on extra- territorial travel as the High Court suggests.”

The Court found that a person who took a trip to Newry for a number of hours would be ineligible to apply for naturalisation and found that this amounted to an “interpretive” absurdity.

The Court went on to consider the lawfulness of the Minister’s policy with regards to the impact of absences of over six weeks in the year prior to application.

The Court held that the legislative intention of Section 15(1)(c ) was to place a higher degree of importance on physical residence in the State in the year prior to application than in the previous years of reckonable residence. The Court found that there is a difference between “residence” /“ordinary residence” and “continuous residence”.

The Court did not agree with the appellants argument that a person is “continuously resident” in the year prior to application simply by virtue of living in Ireland and not being resident elsewhere. The court found that this would negate the substance of the requirement for “continuous residence” in the year prior to application.

The Court found that the Minister communicated in the decision under challenge in this case, “a clearly communicated practice or policy of allowing applicants six weeks absence from the state for work, or other reasons, and more in exceptional circumstances”.

The Court then went on to consider if this policy or practice was unduly harsh or if in the alternative it alleviated the protentional of a literal interpretation of Section 15(1)(c)’s requirement for “continuous residence”.

The Court held:

“The Minister has not adopted a rigid or inflexible policy in construing compliance with the first part of Section 15(1)(c). It is apparent that the objective of the Minister is to adopt a purposive, reasonable and pragmatic approach to the operation of that part of the sub-section”.

The Court further held that the operation of the minister’s “six-week policy” was for the benefit of applicants, in the interests of good administration and for consistency in decision making.

The Court found that the operation of the policy is not unlawful and does not create a “non-statutory barrier” to naturalisation. The Court found the Minister’s policy and practice was “sensible” and in line with the legislation. The Court found that the criteria of the Minister to establish “continuous residence” was reasonable and balanced and has regard to the societal norms regarding foreign travel.

On the basis of the above the Court held that the appellant did not have a year’s “continuous residence “in the State in the year immediately prior to application and was therefore the decision to refuse his application for naturalisation on this basis was not unlawful.

The Court’s judgement is to be welcomed as it has clarified what is required of an applicant to meet the “continuous residence requirement” in the year prior to application.

However, it is unfortunate for applicants, who were not in fact made aware of the Minister’s policy and practice in advance of making their applications.

To date there remains no published policy on the six-week rule or its operation.

We would submit that that policy should be freely accessible and easy to understand. There is no outline of what constitutes “exceptional circumstances”. There remains no guidance regarding absences from work, whether all are permitted or a certain portion.

It is arguable if a period of six weeks absence is in line with the reality for a lot of persons working in Ireland who are required to travel extensively for work. By way of comparison absences of 90 days are permitted by statute in the United Kingdom.

It remains to be seen if the Minister will continue to enact much needed legislation in this area.

 

 

 

MINIMUM SALARIES RAISED FOR EMPLOYMENT PERMITS FROM JANUARY 2020 AND OTHER IMPORTANT CHANGES

The Employment Permits (Amendment)(No.2) Regulations 2019, 9th July 2019 amend the Employment Permit Regulations 2017-2019.

A number of the new regulations are now in force and a number will come into force in the new year, on 1st January 2020.

The required period of validity of an applicant’s passport has been reduced from 12 months to 6 months. There has also been a change to the numbers of employment permits that can be issued in respect of particular professions- dairy farming and the meat industry.

The most notable amendment is that there is to be an increase in the minimum salary required for a critical skills employment permit from €30,000 to €32,000 for an occupation on the highly skilled occupations list and from €60,000 to €64,000 for other professions.

In respect of General Employment permits, the period of time a job has to be advertised with the Department of Employment Affairs and Social Protection to satisfy the Labour Markets Needs test will also be increased from 14 days to 28 days.

IMPORTANT HIGH COURT RULING DEEMS REFUSAL OF FAMILY REUNIFICATION TO SPOUSES/CIVIL PARTNERS OF REFUGEES/SUBSIDIARY PROTECTION HOLDERS UNCONSTITUTIONAL

The recent High Court judgment of Mr Justice Barrett in the joined cases of A. vs The Minister for Justice and Equality and S. and S. vs. The Minister for Justice and Equality has held as unconstitutional the statutory provision excluding family reunification rights to the spouses and civil partners of refugees whose marriage took place after the granting of refugee status.

This is a very favorable development for the holders of refugee status or subsidiary protection who wish to apply for family reunification for their spouse/civil partner but who were not married at the time that they made their application for protection in the State.

These joined cases raised the question, as to whether s. 56(9)(a) of the International Protection Act 2015 is unconstitutional and/or incompatible with the European Convention of Human Rights.

The context of this judgements is that previously, under the Refugee Act 1996, now repealed, refugees were  eligible for family reunification with their spouse whether or not they had been married at the time at which they made their application for protection in the State.

Under the more recent International Protection Act 2015, section 56(9)(a) and (b) provides that holders of refugee status and subsidiary protection are only eligible for family reunification with their spouse where their marriage took place prior to the date of their application for protection in the State.

In his judgment, Mr Justice Barrett declared that Section 56(9)(a) is “repugnant to the provisions of the Constitution” and is therefore “invalid and does not have the force of law.”

The Court found that there was no objective and reasonable justification in this context for a differentiation in treatment between couples married pre-flight to those married post-flight, referring to the European Court of Human Rights case Hode and Abdi v. UK, in which that Court had objected to differentiation in treatment on the basis of the time of marriage.

The Judge went on to state that although it was no longer necessary as the section had already been declared unconstitutional, the court would also have declared that Section 56(9)(a) is incompatible with the State’s obligation under Article 14 ECHR read together with Article 8 ECHR, the latter protecting the rights to family and private life.

The Court in this ruling has notably departed from the judgment of RC or VB v. The Minister for Justice [2019] IEHC 55, which dealt with a similar question.

This judgment has significant implications for refugees and beneficiaries of subsidiary protection who have applied for their spouse or civil partner to be granted family reunification and who have been refused on the basis that their marriage took place after they made their application for protection in the State.

The judgement also opens to the door for refugees who failed to submit an application for family reunification for their spouse or civil partner under the 2015 Act, on the basis that they believed they were not eligible under Section 56 (9) (a).

If you believe this may affect you please contact the office with your questions and we will seek to assist you in the next steps.

 

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.

REDUCTION IN SUCCESSFUL HUMANITARIAN APPLICATIONS

The past two years have seen a steep drop in the rate of successful humanitarian applications in the State. While 2015 saw a 60% rise in the granting of leave to remain over one year (Holland, 2015) the introduction of the International Protection Act, 2015 has seen the rate of humanitarian leave granted plummet to only 163 people in 2017, down from 465 in 2016 and 1,201 in 2015 (Power, 2018).

The Leave to Remain process is explained by the McMahon report (Department of Justice, 2015) as follows;

“The consideration by the Minister for Justice and Equality of whether or not to issue a deportation order in respect of a person who has been deemed not eligible for protection. If the decision is that a deportation order should not issue, leave to remain in the State is granted under Ministerial discretion following consideration of representations submitted, including in relation to the matters set out in section 3 of the Immigration Act 1999.”

Attention was brought to this steep drop in humanitarian leave being granted by TD Catherine Martin of the Green Party, representing Dublin Rathdown. In response to Ms Martin’s parliamentary question, Minister Charlie Flanagan’s answer was as follows (Dáil Debates,23rd January 2018);

“I am advised by the Irish Naturalisation and Immigration Service (INIS) of my Department that the information sought by the Deputy is included in the table.

The number for 2017 is influenced by the introduction of the new International Protection Act which required significant changes to procedures as well as the introduction of the transition provisions of the Act which required a significant number of cases to revert for processing to the International Protection Office.  All of this impacted on the number of cases brought to finality. With the new procedures bedded down the rate of processing is expected to increase significantly in 2018 and beyond.

Year    Leave to Remain

2016    465

2017    163

Total    628”

As stated by Minister Flanagan, it is presumed that the drop in successful humanitarian leave applications  is largely due to the introduction of the International Protection Act, 2015. The International Protection Act, 2015 was designed to streamline and improve the asylum process in the State, which was infamously overburdened and delayed. Minister Flanagan in the above statement, submits that the drop in successful humanitarian applications is due to moving all cases into the simplified asylum process introduced by the Act, and not due to an increased rate of rejection for applicants.

It remains to be seen whether this drop in applications is in fact due to the transitional issues associated with the State’s reform of the asylum and leave to remain process, or if it instead indicative of a continuing issues with delay in spite of the new Act.

Dáil Debates, Asylum Applications Data, 250, 23rd January 2018, [https://www.kildarestreet.com/wrans/?id=2018-01-23a.505&s=%22leave+to+remain%22#g506.q] [Accessed 6 Feb.2018].

Department of Justice (2015). Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers. [online] Dublin: Department of Justice. Available at: http://justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf [Accessed 6 Feb. 2018].

Holland, K. (2015). Number of asylum seekers given leave to stay up by 60%. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/number-of-asylum-seekers-given-leave-to-stay-up-by-60-1.2437131 [Accessed 6 Feb. 2018].

Power, J. (2018). Sharp fall in asylum-seekers granted humanitarian reprieve. Irish Times. [online] Available at: https://www.irishtimes.com/news/social-affairs/sharp-fall-in-asylum-seekers-granted-humanitarian-reprieve-1.3379239?mode=amp [Accessed 6 Feb. 2018].