Tag Archive for: Irish Naturalisation and Immigration Service

NOTICE REGARDING RE-OPENING OF BERKELEY SOLICITORS

Berkeley Solicitors has reopened on the 30th March 2020, following a temporary closure of the office due to the Covid 19 crisis.

On the 29th March 2020, the government directed all residents to stay at home for a 14 day period, with some limited exceptions, in a national effort to restrict the spread of the  Covid 19 virus.

It is therefore not possible for Berkeley Solicitors to return to business as normal during this 14 day period, until at least the 12th April 2020.

We are instead returning to work in a limited capacity,  with a some changes to our procedures to ensure the safety and protection of our staff and clients.

Our phone lines will be open from 9 am to 12 midday, Monday to Friday. If you wish to contact us outside of these times, please email us and we will revert as soon as possible.

We are no longer arranging consultations in our office in person. All consultations are to be arranged by telephone, Skype or Zoom only.

All documents must be provided to the office electronically in PDF files.

We ask that clients do not call to the office in person to speak with their solicitor, as the solicitors will keep in contact with clients in the normal way by email and phone.

Any payments to be made to the office must be by electronic bank transfer only.

Please note that these new procedures are temporary based on the current exceptional circumstances, and we look forward to returning to work as normal on or after the 12th April next.

We will continue to update you on the development’s in this regard.

We thank you for your patience and support in complying with our new temporary procedures.

Best wishes,

Berkeley Solicitors

ANNOUNCEMENT REGARDING SUSPENSION OF NORMAL VISA APPLICATION PROCEDURE DUE TO COVID 19 PRECAUTIONS

ANNOUNCEMENT REGARDING SUSPENSION OF NORMAL VISA APPLICATION PROCEDURE DUE TO COVID 19 PRECAUTIONS

 

On the 21st March 2020, the Immigration Service Delivery (formerly INIS) announced the temporary suspension of the normal visa application procedures.

This suspension is due to commence on the 20th March 2020, and applies to all new visa applications.

The Department has further stated as follows:

While it will still be possible to apply for an Irish visa online in the normal manner, these temporary measures mean that applicants will not be able to complete their application process and we apologise for any inconvenience this might cause. Please note that any application made online will remain valid until such time as restrictions are lifted.

We intend to resume accepting applications as soon as safety concerns abate. Certain Priority/Emergency cases will continue to be processed and these include the following:

  • Emergency visa (e.g. Healthcare professionals, health researchers, and elderly care professionals;
  • Immediate family members of Irish citizens, persons legally resident in the State and Persons entitled to avail of the provision of the EU Free Movement Directive.

If your application falls into one of these categories, you can apply on-line in the usual way. Once you’ve completed the on-line application, you should follow the instructions given on the summary page as to where you should submit your application.

 

The full announcement can be viewed here:

http://www.inis.gov.ie/en/INIS/Pages/Home

Please note to all concerned clients, this suspension does not apply to any visa application submitted before the 20th March 2020.

 

Please further note that many visa applications will continue to be processed, including the “Immediate family members of Irish citizens, persons legally resident in the State and Persons entitled to avail of the provision of the EU Free Movement Directive.”

 

Please send all queries regarding visa applications to us as normal and we will advise when the office re opens.

 

Berkeley Solicitors

ANNOUNCEMENT REGARDING AUTOMATIC EXTENSION OF RESIDENCE PERMISSIONS FOR TWO MONTH PERIOD

On the 20thMarch 2020, the Immigration Service Delivery (formerly INIS) made an important announcement regarding the automatic extension of some non-national’s residence permissions.

The ISD confirmed that any residence permission due to expire between the 20th March 2020 and the 20th May 2020 will automatically be renewed for a two-month period.

This means non-nationals do not have to attend the registration offices in person to extend their permission in the usual way.

We refer to the full announcement which states as follows:

This notice applies to Immigration and International Protection permissions to reside in the State that are due to expire between 20/3/2020 and 20/5/2020.

In light of the uncertainties caused by the Coronavirus pandemic, COVID-19, the following Notice applies to all persons with a current valid permission due to expire from 20/3/2020 to 20/5/2020, whether pursuant to domestic law or powers of the Minister, or Directive 2004/38/EC (Free Movement Directive).

All such permissions that are due to expire from 20/3/2020 to 20/5/2020 are automatically renewed by the Minister for a period of 2 months. The renewal of permission is on the same basis as the existing permission and the same conditions attach. In relation to persons with existing permission under Directive 2004/38/EC (Free Movement Directive), the automatic renewal is subject to the requirement that the person is complying with the requirements of the Directive.

 

The full announcement can be viewed here:

http://www.inis.gov.ie/en/INIS/Pages/Home

This is a welcome development which will avoid unnecessary worry for those whose residence permissions are expiring during the current Covid 19 crisis.

Berkeley Solicitors

 

COVID-19 AND INIS REGISTRATION REQUIREMENTS

On the 13th March 2020, the EU Treaty Rights Section have announced the following new measures;

In response to Government measures to ensure public health and safety in light of COVID-19, EU Treaty Rights Division of Immigration Service Delivery wishes to advise of the following arrangements with immediate effect.

  1. If you are the holder of a valid EUFam Residence card (including a Permanent Residence Card) that is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  2. If you are currently the holder of a valid temporary permission granted pending a decision on your EU Treaty Rights application (including a review application) and that permission is due to expire between now and the 29th March 2020, your permission will be extended automatically until Monday 27th April 2020.
  3. If you have recently made a Residence Card application and have not yet heard from EU Treaty Rights Division in this regard, and the permission granted on entry to the State is due to expire on or before 29th March 2020, this permission will be extended automatically until Monday 27th April 2020.

You do not need to contact EU Treaty Rights Division during this period to request an extension of your residence card or permission.

Due to the uncertainty of the situation, delays may occur.  Further updates will be provided in due course.

 

See link below:

 

http://www.inis.gov.ie/en/INIS/Pages/EU+Treaty+Rights

 

This exceptional measure to automatically extend EU Treaty Rights residence permissions until the 27th April 2020 is a welcome and necessary measure.

 

However, no such announcement has been made in respect of the automatic extensions of residence permissions issued under Irish law.  In fact, it has been confirmed that the Burgh Quay registration office will proceed as normal, with some minor changes;

 

Registration of immigration permissions at Burgh Quay will proceed as normal using a streamlined process designed to minimise the amount of time applicants need to spend in the office. In that regard, applicants must not bring family members or friends with them for registration, unless required to do so as part of the verification process, as this increases overall risks;

 

http://www.inis.gov.ie/en/INIS/Pages/updated-measures-to-respond-to-COVID-19-from-the-Immigration-Service-Delivery-Function-of-the-Department-Justice-and-Equality

Thus, many non-nationals are currently still required to attend the Burgh Quay Registration Office in person to extend their permission in circumstances, most likely in breach of the current guidelines regarding the Covid19 Crisis.

We would appeal to the Minister to urgently issue updated guidelines for all non-nationals to obtain automatic extensions of their permissions in these exceptional times.

 

Berkeley Solicitors

CLIENT OF BERKELEY SOLICITORS RECENTLY HAD THEIR STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

Berkeley Solicitors recently received a very successful and significant decision in which our client was granted naturalisation having been on Stamp 0 for a period of over five years preceding the application.

This is an exceptional decision given the Department’s suggestions that stamp 0 residence permission is a low-level immigration status which is not intended to be reckonable for Citizenship and is granted for a limited and specific stay in Ireland.

The INIS website clarifies that:

“Stamp 0 indicates permission to stay in Ireland for a temporary period, subject to conditions.

Summary of conditions:

You must be of independent means, ie fully financially self-sufficient. Alternatively, your sponsor in Ireland must be of independent means and can support you fully.

You cannot receive any benefits or use publicly funded services, eg be treated at a public hospital. You must have private medical insurance.

You must not work or engage in any business, trade or profession unless specified in a letter of permission from INIS.”

There are three main types of persons eligible for Stamp 0:

  1. Elderly dependent relatives
  2. Persons of independent means (financial threshold is considered in an around 50,000 with access to a lump sum of money in the event of unforeseen major expenses).
  3. Visiting academics working here for less than nine months.

Our client met all the conditions of Stamp 0 permission. Stamp 0 permission means that a person cannot work in the State, engage in self-employment, access State benefits or rely on State resources. Therefore, an individual on Stamp 0 must be wholly and totally self-sufficient or dependent. The individual is also required to reside continuously in the State.

Reckonable residence is the duration of a person’s residence when assessing an application for naturalisation.

This is the first case we are aware of where Stamp 0 has been accepted as reckonable residence for the purpose of naturalising.

Although acquiring citizenship is a privilege and not a right and is subject to the Minister’s absolute discretion, the Minister must act within the confines of the statutory definition of reckonable residence as defined at Section 16 A of the the Irish Nationality and Citizenship Act 1956, as amended.

This is a very hopeful outcome for individuals who are resident on stamp 0 permission, and they have made Ireland their permanent home but have concerns regarding their reckonable residence in the State for the purposes of naturalization.

We at Berkeley Solicitors welcome this very encouraging development surrounding reckonable residence and are happy to advise any clients wishing to pursue their naturalization application.

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.