Tag Archive for: MINISTER FOR JUSTICE

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

NEW ACT INTRODUCING SIGNIFICANT CHANGES TO IMMIGRATION AND CITIZENSHIP COMMENCED

The Minister for Justice Helen McEntee has commenced the majority of the provisions of the Courts and Civil Law (Miscellaneous Provisions) Act 2023.
This Act has introduced significant amendments to immigration, citizenship and naturalisation law in Ireland, to take effect from 31st July 2023. The major changes are outlined below:
The Act contains amendments to a number of provisions of the Irish Nationality and Citizenship Acts.
Children born in the State who are not entitled to Irish citizenship by birth, will now be eligible to apply for naturalisation after three years of reckonable residency in the State, reduced from five years……

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RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

ISD NOTICE CONFIRMS THAT TEMPORARY PROTECTION HOLDERS DO NOT NEED TO APPLY FOR A NEW TEMPORARY PROTECTION CERTIFICATE



The Department of Justice has recently published a travel confirmation notice for beneficiaries of Temporary Protection, benefiting from the Temporary Protection Directive.

The notice confirms that the Minister for Justice has extended immigration permissions for all beneficiaries of Temporary protection to 4th March 2024. From 16th February 2023, non-nationals with a Temporary Protection Certificate living in Ireland will not need to apply for a new Temporary Protection Certificate.

Expired certificates can be used as proof of entitlement to Temporary Protection and any related state services, up until 4th March 2024.

If a Temporary Protection holder has an expired Temporary Protection Certificate, and they intend to travel and subsequently re-enter the State, if they are a national of Ukraine or a non-visa required national, no action is necessary.

If they are a national of a country that is a visa-required national for Ireland, the Department of Justice have advised to contact [email protected] to ensure that the Temporary Protection holder has the necessary documents to re-enter Ireland without a visa.

The full Travel Confirmation Notice can be accessed via the following link:

https://www.irishimmigration.ie/travel-confirmation-notice/

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

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

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

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578.

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful.

 

The Applicant initiated Judicial Review proceedings in the High Court to challenge the Minister’s decision, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

The Minister refused the visa application on the basis that there was insufficient documentation submitted in support of the application. The Minister stated that there were inconsistencies and contradictions in the information supplied. Lastly, the Minister stated that the visa sought was for a specific purpose and duration, and the applicant had not satisfied the visa officer that such conditions would be observed. The Minister highlighted that the applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for taking up the employment position in Ireland.

 

The appeal was also refused on the basis that the applicant had not addressed the refusal reasons listed in the refusal letter. The Minister relied on evidence from a telephone interview with the applicant in which he was asked what type of food he would be cooking, to which he replied, “Indian breads.” The applicant was then asked about cooking other dishes such as chicken tikka and he confirmed that this was not part of his job as a tandoori chef but that he had a basic knowledge of this type of cooking.

 

The Court found that the appeals decision did not state what documentation was missing from the applicant’s application, nor was missing documentation identified during the application or appeal process. The Minister’s deponent swore an affidavit in the proceedings which took issue with the applicant’s failure to submit a supplementary form that was required by the Minister. It was further highlighted that payslips, tax forms and evidence of experience or qualifications were missing, however this was raised for the first time after judicial review proceedings were initiated.

 

The Court found that it was unreasonable for the decision maker to dismiss the applicant’s two work references because of an absence of a website. The decision maker had claimed the lack of a website meant they were unable to check the references, when one written reference may have included a website and both references included mobile numbers which were not checked by the Minister.

 

Regarding the alleged inconsistencies in the application, the Court found that it was unclear from the appeal decision what these inconsistencies were. The decision maker had concluded based off the interview that the applicant could not provide detailed recipes for food which he would be required to cook in Ireland. The Court found that this was not a reasonable conclusion for the decision maker to reach, as the applicant’s work permit made it clear that his job was to make specialty tandoori bread, which the employer was satisfied the applicant had sufficient experience in. The applicant never claimed he would be required to cook chicken tikka or chicken dishes in Ireland and there was therefore no need to question him about his experience in this regard.

 

The Court found that a work permit does not constitute prima facie evidence that the applicant has the skills and experience required, to the point that the Minister for Justice cannot look behind the grant of the permit or require an applicant for a visa to show they are qualified to do the job for which they were granted the permit, in the assessment of the visa application to enter Ireland. However, the Court found that it also cannot simply be ignored.

 

The Court further found that there were no reasons or explanations given for the Minister’s decision that the applicant had not satisfied the visa officer that the conditions of the visa would be observed. The Court found that the reasons set out in the appeal decision were very brief. Ms Justice Bolger highlighted that the reasons set out in the decision fell well short of what is required.

 

This case raises the interesting conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is again subjected to a review by the Minister for Justice in their visa application.

 

It is the Minister for Justice who has responsibility for the issuance of visas and immigration permissions.  In our experience the Minister for Justice does not limit her assessment of the visa application to immigration matters only and will often undertake an examination of the applicant’s suitability for the employment position they have been issued an employment permit for.

 

It is a very unfortunate and regrettable position for a person who has been successful in obtaining an employment permit to come and work in Ireland to then be refused entry to the State to take up that employment due to concerns raised by visa officers as to the applicant’s suitability for an employment position.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

RECENT HIGH COURT JUDGEMENT RELATING TO VISA REFUSAL FOR HUSBAND OF IRISH CITIZEN

Justice Phelan of the High Court has recently delivered judgement in the case of S.M and T.A v Minister for Justice [2022] IEHC 611

 

This case involved a long stay visa application made by the husband of an Irish citizen to join his wife in Ireland. The visa application was refused by the Minister and was also refused on appeal.

 

The couple challenged this refusal in the High Court by way of Judicial Review.

 

The couple were unsuccessful in their case before the High Court.

 

The visa application was refused for multiple reasons. The Court found that the Minister had failed in a number of respects in the assessment of the visa application.

 

The Irish Immigration Service Delivery consider visa applications in line with a Policy Document on Non, EEA family reunification, December 2016 (https://www.irishimmigration.ie/wp-content/uploads/2021/04/Policy-document-on-Non-EEA-family-reunification.pdf)  . Under the terms of this policy, Irish citizens are asked to have earned a certain income within the three  years prior to the visa application for their family member. In this case, the Irish citizen sponsor did meet this financial  criteria.

 

Despite this, the Minister found that granting the visa application would likely cost the Irish State money. It was found that the bank balance of the sponsor was low, and this caused this risk. The Court found there had been a lack of fair procedures in respect of the handling of  this aspect of the case. The Irish citizen sponsor in fact had savings but had not provided evidence of same as it was not obvious that they would be required when the financial criteria had been met.

 

The Court also found that the Minister had been incorrect in finding that there had been no explanation with regards to discrepancies on official documents and dates of registration on such documents. The applicant and sponsor had provided explanations. The court found that the correct approach of the Minister  should have been to acknowledge that an explanation had been provided, but could then have assessed if this explanation was to her  satisfaction or not.

 

It was brought to the Court’s attention by the applicants that a previous visa refusal has to be declared going forward and can have a negative impact on a person’s immigration history. The Court considered quashing the decision with this in mind, but ultimately held that there was no unreasonable prejudice to the applicants, as they could re-apply providing the documents that were found to be lacking and with new financial documentation. The Court found that this application would be made on better facts and did not believe there was an unreasonable prejudice to the applicant in having to declare a previous visa refusal.

 

The applicants also brought it to the Court’s attention that the Irish citizen sponsor was pregnant and also the security and safety circumstances in the home country of the sponsor had deteriorated. The Court found that this was not put to the Minister during the application  prior to a decision being made and therefore could not be properly found as a reason to find fault with the decision at this stage.

 

The Court ultimately held that due to the myriad of reasons the application for the visa had been refused, the deficiencies in the decision-making process as specifically  identified by the Court did not amount to the decision being unlawful.

 

The Court held that even if these matters had been handled in the proper way the visa application would still have been refused for other reasons, including a failure to provide specifically requested documents and the quality of some official documentation.

 

The Court stated that a fresh visa application to address these issues was a suitable way forward for the applicants.

 

This judgement highlights the importance of providing all requested documents in a visa application, following all ISD published guidelines in respect of documents and attestation of certificates and providing all relevant information in the visa application.

 

The Judgment also appears to  indicate that were an applicant meets the financial  criteria of the policy document, it would only be fair that an applicant be put on notice that the Minister intends to  refuse the application on those grounds to allow them to address these  concerns prior to decision being made.

 

The full judgment can be found here:

 

https://www.courts.ie/viewer/pdf/fa5fae37-2d5d-4ba3-bd24-ef1099537524/2022_IEHC_611.pdf/pdf#view=fitH

 

Berkeley Solicitors is highly specialised in preparing and submitting join family visas. Please do contact us if you need advice or assistance with such an application.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

MINISTER FOR JUSTICE ANNOUNCES ARRANGEMENTS FOR THE RENEWAL AND REGISTRATION OF IMMIGRATION PERMISSIONS

On the 27th May 2022, the Minister of Justice announced new arrangements for the renewal and registration of immigration permissions. Throughout the Covid-19 pandemic, the Minister for Justice automatically extended immigration permissions of those who held a valid permission to reside in the State that expired in or after March 2020. The Minister of Justice made announcements on nine different occasions, each time stating that permissions would be automatically renewed to a certain date. The most recent extension announced by the Minister extended immigrations permissions to the 31st May 2022.

For the first time since March 2020, the Minister for Justice has announced that immigration permissions that expired between March 2020 and May 2022 will no longer be automatically renewed. The Minister announced that the exemption from renewing is to end from the 31st May 2022.

The extension of immigration permissions was a response by the Department of Justice to the ever-changing and uncertain health and travel restrictions that were in place during the Covid-19 pandemic.

In making the announcement, the Minister for Justice commented;

Now that those circumstances are returning to normal, it is important that we also return to a more normal way of doing business. This includes in relation to first-time registrations and renewals, and processes and procedures have been in place to allow customers to do so for some time now.

You can apply to renew your immigration permission online at https://inisonline.jahs.ie/. Those applying with a new passport can now also upload the bio-page of their passport online.

Previously, it was a requirement that you had to wait until four weeks before your permission was due to expire to be able to renew. This has been amended, and you can now renew your permission up to 12 weeks in advance of your permission expiring.

Those based in Dublin can register their immigration permission for the first time by calling Freephone number 1800 741 741. Those located outside of Dublin are required to make an appointment to register their immigration permission through the Garda Station network.

The Minister of Justice announced important clarifications for employees whose immigration permission has expired and who are unable to obtain a valid IRP card before the 31st May 2022. The Minister has confirmed non-EEA nationals can legally continue work while their application for renewal is processing once they can provide their employer with documentary evidence of same.

In the announcement, the Minister also confirmed that students who intend to enroll in third level education, can apply for a short-term letter of permission based on proof of application or enrolment once they have completed three eight-month English language courses.

 

The notice can be read in full here.

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

VISA REQUIREMENTS BETWEEN UKRAINE AND IRELAND LIFTED WITH IMMEDIATE EFFECT

Up until today, nationals of Ukraine required entry visas to travel to and enter Ireland.

This involves submitting a detailed visa application to the Irish Embassy prior to travel. This process can often incur long delays and requires a huge array of original documentation.

On the 25th February 2022, Minister for Justice, Helen McEntee has announced that nationals of Ukraine are now non-visa required persons in the Irish immigration context and that this emergency measure will be implemented with immediate effect.

This means that nationals of Ukraine no longer require an entry visa in advance of travel to the State and can travel to the State and request entry at the border as a non-visa required national.

In the Minister’s press release it is stated that those who travel to Ireland from Ukraine without a visa during this time will be given 90 days to regularise their immigration permission in the State.

The appropriate immigration application to make upon arrival in Ireland will differ depending on the particular circumstances of the person arriving.

In a statement, Minister McEntee stated that she is “appalled by the Russian invasion of Ukraine, and the unjustified and unprovoked attack against a democratic sovereign state in Europe.” Minister McEntee confirmed that Ireland stands in solidarity with the Ukrainian people.

The full announcement can be read here.

We welcome the Minister’s action which may assist citizens of Ukraine to flee to safety and assist families in Ireland to be reunited with their Ukrainian family members on an urgent basis and avoid a delayed visa processing system.

Berkeley Solicitors wishes to express our deepest concerns for the people of Ukraine and if you or your family require legal advice in respect of the matters raised in this blog please do not hesitate to get in touch.

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

NEW SCORECARD APPROACH INTRODUCED FOR CITIZENSHIP APPLICATIONS FROM JANUARY 2022

On the 31st December 2021, the Department of Justice announced that it would be introducing a scorecard approach for supporting documents that are required for citizenship applications, to prove required residency and establish identity.

The scorecard approach, which is applicable from the 1st of January 2022, is intended to clarify the information that applicants are intended to provide to establish their identity and required residency when applying for Irish citizenship.

Previously, applicants were required to provide a certain number of proofs of residency for each year of the period of residence claimed on their application form. Under the new approach, applicants will now need to reach a score of 150 points in each of the years proof of residency is required. A certain proof of residency will have a definite point value that has been predetermined by the Department.

Furthermore, an applicant will be need to provide sufficient documentation to accumulate 150 points to establish their identity. In the circumstances where an applicant is not able to meet the 150 points standard, the Department has indicated that the applicant will need to engage with the Citizenship Division to provide reasons as to why this is the case.

In the announcement, the Department highlighted the importance that proofs of identity and residence hold for a citizenship application, and confirmed that insufficient documentation can lead to an application being deemed ineligible.

An applicant is no longer required to submit their original passport with their citizenship application; however, the Minister reserves the right to request original passports from an applicant at any stage in the process.

The full announcement can be read here.

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

MINISTER FOR JUSTICE ANNOUNCES NEW REGULARISATION SCHEME FOR LONG-TERM UNDOCUMENTED MIGRANTS

On 3rd December 2021, the Minister for Justice announced a new scheme which will enable many undocumented migrants to apply to regularise their residency status.

The scheme will open for online applications in January 2022 and applications will be accepted for six months.

The scheme will include those who do not have a current permission to reside in Ireland, whether they arrived illegally or whether their permission expired or was withdrawn years ago.

In order to be eligible, applicants must have been undocumented for a period of four years, or three years in the case of those with dependent children.

According to a briefing session with Department of Justice officials held on 2nd December  2021, a short period of absence from the State in the undocumented period for those who would otherwise qualify will be disregarded. This will be limited to a max of 60 days absence from the State and the documented period arising from the short-term tourist permission (up to 90 days).

Applicants must meet standards regarding good character, though having convictions for minor offences will not, of itself, result in disqualification.

There will be no requirement for applicants to demonstrate that they would not be a financial burden on the State, as the scheme is aimed at those who may be economically and socially marginalised as a result of their undocumented status.

The scheme will also be open to individuals with expired student permission, those who have been issued with a section 3 notice under the Immigration Act 1999, and those who have received deportation orders.

The scheme is also expected to include international protection applicants who have been in the asylum process for a minimum of 2 years, though full details on this are yet to be announced.

There will be an application fee of €700 for family unit applications, while a fee of €550 will apply to individuals’ applications. Children up to 23 years, living with their parent(s), can be included in a family unit application.

Successful applicants will be granted residence permission which will allow access to the labour market and will provide a pathway to Irish citizenship.

Announcing the scheme, the Minister for Justice Helen McEntee stated:

“I’m delighted that the Government has approved my proposal for this momentous, once-in-a-generation scheme.

Given that those who will benefit from this scheme currently live in the shadows, it is difficult to say how many will be eligible, but we are opening this scheme for six months from January to allow people come forward and regularise their status.

It will bring some much-needed certainty and peace of mind to thousands of people who are already living here and making a valuable contribution to our society and the economy, many of whom may be very vulnerable due to their current immigration circumstances.”

As a result, they may be reluctant to seek medical assistance when ill, assistance from An Garda Síochána when they are the victim of a crime, or a range of other supports designed to assist vulnerable people in their times of need.”

I believe that in opening this scheme, we are demonstrating the same goodwill and generosity of spirit that we ask is shown to the countless Irish people who left this island to build their lives elsewhere.”

The full announcement can be read here.

Studies suggest that there are 17,000 undocumented persons in the State, including up to 3,000 children.

Berkeley Solicitors welcomes the announcement of this scheme, which will allow many undocumented migrants to come forward and apply to regularise their status.

UPCOMING CITIZENSHIP CEREMONIES

PASSPORT SERVICES TO BE CONSIDERED ESSENTIAL UNDER NEW PLANS BROUGHT TO CABINET

Today, new proposals will be brought to Cabinet by the Minister for Foreign Affairs which will deem the production of passports an essential service.

The majority of passport services have been suspended since December in line with the Level 5 restrictions.

It is planned that the Minister will ask the Cabinet to consider passport services an essential service in order to allow the backlog to be efficiently cleared.

Approximately 89,000 people have been affected by delays in the processing of passport applications including 44,000 domestic applications and 45,000 from outside the State.

The issuing of a passport to Irish citizens is provided for under the Passports Act 2008 which states:

‘a person who is an Irish citizen and is, subject to this Act, thereby entitled to be issued with a passport.’

Berkeley Solicitors therefore believes that the failure to issue passports to Irish citizens is contrary to this Act.

This matter is of great concern and Berkeley Solicitors has received many queries from those who have been unable to receive a passport for travel or identification purposes.

In deeming the production of passports an essential service, it is hoped that this backlog can be cleared in a matter of weeks.

Berkeley Solicitors are happy to see this news today and we hope that it will benefit those who have been affected.