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MINISTER FOR JUSTICE ANNOUNCES BURGH QUAY REGISTRATION OFFICE TO REOPEN AND EXPANSION OF ONLINE REGISTRATION RENEWAL SYSTEM

On 7th July 2020 the Minister for Justice, Helen McEntee, announced that the Online Renewal system for immigration permissions will be expanded to allow all Dublin based non-nationals to apply online to renew their immigration registration.

It is expected that this will make the renewal process easier for thousands of people every year, and significantly reduce the number of people who need to attend the Burgh Quay Registration Office in person.

The online system will be made available from 7th July 2020 for those with an urgent need to travel and who require an Immigration Residence Permit (IRP) card before they travel.

Making the announcement, the Minister stated:

“I’m very pleased to be able to announce the expansion of our online Registration Renewal System. This is good news for our Dublin based customers because it makes the whole process easier and means they can do their renewal from the comfort of their own home instead of having to book an appointment to come into the city and attend Burgh Quay. 

 Now, all that applicants have to do is complete a form online, upload supporting documents, pay the fee and then submit their passport and current IRP card via registered post. This is much easier and quicker than the previous system, where it could sometimes be difficult to get an appointment.” 

The Minister also announced that the Burgh Quay Registration Office will reopen on 20th July 2020 for first time registration. As first-time registrations require biometrics to be taken, it is not possible to for these to be done online.

Individuals who had their first-time registration appointments cancelled when the Burgh Quay office closed in March due to Covid-19 restrictions will be prioritised once the office reopens. The Immigration Service Delivery will be contacting those affected to organise new appointments.

The full announcement can be read here.

If you or a family member have queries about your immigration permission, please do not hesitate to contact our office.

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

IMMIGRATION SERVICE DELIVERY ANNOUNCES POLICY CHANGE ON EXTENSION OF ENTRY VISAS DUE TO COVID-19

The Immigration Service Delivery has issued an updated set of frequently asked questions in relation to Covid-19 and its effects on immigration services in the State.

The document now states that individuals who were recently issued  D category entry visas (prior to 15th March 2020) and who were unable to travel to Ireland during the validity dates of their visa as a result of Covid-19 restrictions, may now apply to amend dates on the approved visa.

The previous position of the Immigration Service Delivery was that such individuals would have to submit new visa applications in the event that they could not travel to Ireland within the validity dates of their visa.

The relevant section states as follows:

“Q 5. What facility will be put in place if I am currently outside Ireland and was recently granted a C or D entry visa for Ireland but I am now unable to come to Ireland during the validity period of my entry visa due to travel restrictions? Can my entry visa be extended or will I have to submit a new visa application?

A. In the case of Long Stay visas issued prior to 15th March 2020 where an applicant was not in a position to travel to Ireland because of the COVID-19 situation, it may be possible to amend the dates on the approved visa. Once we resume accepting visa applications, you should contact the Irish Embassy or Consulate that issued the visa to you.

In the case of Employment/Volunteer/Minister of Religion/Study visas, you should be able to show the Embassy that the reason for your travel to Ireland still applies, before consideration could be given to amending the visa that was issued to you.

Anyone who was issued a Short Stay visa during the same period but was similarly unable to travel to Ireland because of the COVID-19 situation will need to make a new visa application when normal visa processing resumes. However, depending on the period of time that has passed and the circumstances of the particular case, if you decide to re-apply we will consider waiving the fee for the new application.”

Given the long processing times for new visa applications, we at Berkeley Solicitors welcome this development.

The full document can be read here.

If you have any queries about applying for an Irish visa, please do not hesitate to contact our office.

DEPARTMENT OF JUSTICE ANNOUNCES TEMPORARY ARRANGEMENTS FOR THOSE AWAITING FIRST TIME REGISTRATION

The Department of Justice has announced that anyone who is present in the State with a current, valid permission to remain and is still awaiting their first registration, can now make an electronic application to the Registration Office to request a letter confirming their permission to remain in the State and the conditions attached.

This is a temporary measure which will apply from now until the 20th July 2020.

The notice, published on 21st May 2020, states as follows:

“In light of the uncertainties caused by the COVID-19 pandemic and the difficulties some people can encounter due to not having an IRP card, as a temporary measure between now and 20th July 2020, anyone in the State awaiting their first registration, and who has a current, valid permission to remain, but does not have a current permission letter can apply to the Registration Office to request a letter confirming their permission to remain in the State and the conditions attached. 

For international English Language Students, the extension means that they may continue to work if they wish, but must be enrolled in a course of study to adhere to the conditions of their permission.  

All required documentation (see website for details) should be scanned and included in the application email. All eligibility criteria will continue to apply. 

Applications may be submitted electronically to the Registration Office, Burgh Quay, Dublin (bqregofficeapplications@justice.ie)”

The full notice can be accessed here.

If you or a family member are affected by this notice, please contact our office to discuss.

DEPARTMENT OF JUSTICE ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS

The Department of Justice has announced an additional two-month extension of immigration permissions due to the Covid-19 pandemic.

This temporary extension applies to the following categories:

  • Persons with immigration permissions due to expire between 20th May 2020 and 20th July 2020, including those that were already extended under the previous notice issued on 20th March 2020;
  • Persons awaiting their first registration, having been granted permission to land at a port of entry on condition they register at Burgh Quay or their local registration office within 3 months, but who have not yet done so;
  • Persons resident in Ireland on the basis of Short Stay visas.

The notice confirms that the permissions will be automatically renewed for a two-month period, on the same basis as the existing permission and subject to the same conditions.

The notice also clarifies that international English Language Students can continue to work if they wish but that they must also re-enrol in an online course of study to adhere to the conditions of their permission.

The registration office in Burgh Quay in Dublin will remain closed and will only reopen when it is safe to do so. The normal requirements to register residence permission will not arise until the registration offices can reopen or alternative arrangements are put in place.

Non-nationals can present evidence of their last residence permission, in the form of a formal decision letter and/or the IRP card, together with a copy of the Notice, as evidence of their ongoing permission to remain in the State.

The notice can be accessed here.

If you or a family member are affected by this notice, please contact our office to discuss.

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.

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.

FURTHER DECISION ISSUED IN WHICH MINISTER RETROSPECTIVELY AMENDS STAMP 2 A PERMISSION TO STAMP 3 FOR SPOUSE OF PHD STUDENT

Berkeley Solicitors has received a second decision within two months in which the Department of Justice and Equality has agreed to retrospectively amend Stamp 2A permission, incorrectly assigned to our client, to Stamp 3 immigration permission spanning over a period of two years.

In November 2019, we posted a blog on this issue which can be read in full here.

Our client is the spouse of a PhD student in Ireland and prior to being issued with Stamp 2 A, our client held Stamp 3 permission for a number of years.

Our client was never provided with an explanation for the change in permission nor was she provided with any information regarding the impact or consequences of this change of status.

Given that it is the practice for the Minister to issue Stamp 3 permission to Spouses of PhD Students, the significant decision to retrospectively amend our client’s permission is particularly encouraging.

We highlight that this decision provides our client with further years of reckonable residence, which she was deprived of through the wrongful issuance of Stamp 2 A. Our client is now able to proceed with an application for naturalisation.

We are delighted to see requests for the retrospective amendment of a person’s registration or permission being facilitated and it has become clear to us that this it is entirely possible for the Minister to issue such decisions where appropriate.

If you or a family member are affected by the issuance of inappropriate immigration permission please do not hesitate to contact our office.

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.

 

 

UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  here.