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APPLICATIONS OPEN FOR WITHDRAWAL AGREEMENT BENIFICIARY CARDS FOR UK NATIONALS AND THEIR FAMILY MEMBERS

Brexit has not affected a UK national’s right to reside or work in Ireland as UK nationals continue to reside lawfully in the State under Common Travel Area protections.

The Withdrawal Agreement also ensures that UK nationals, and their non-EEA Family members, who are resident in Ireland pursuant to the Free Movement Regulations under EU law, as of the 31st December 2020, will continue to hold the same right to reside and work deriving from the Regulations going forward.

The non- EEA family members of UK nationals resident in the State on or before the 31st December 2020 were previously required to hold an Irish Residency Permit (IRP) card (usually referred to as the “EU Fam Residence card”). Since the 1st January 2021, these family members residing in the State are now required to replace their existing IRP card with a Withdrawal Agreement Beneficiary (WAB) Card, in order to continue to reside lawfully in the State.

The WAB card is an important document that will evidence that the holder of the card is a beneficiary of the Withdrawal Agreement, which allows the UK national or their family member to continue to access all the rights deriving from the EU Free Movement Regulations, eg the right to reside, the right to work, the right to permanent residence, etc.

The family members of UK nationals who are resident in the State on or before the 31st December 2020 are required to apply for the WAB card.

It is very important that the family members of UK nationals apply for the WAB card as soon as possible, because after the 31st December 2021 their IRP card issued under the Regulations (the EU Fam residence card) will become invalid.

Applications for a WAB card are open since the 1st January 2021, and are being administered by the Immigration Service of the Department of Justice through and on-line renewal system available at https://inisonline.jahs.ie. This system applies to all applicants throughout Ireland.

All those affected will have until 31 December 2021 to apply for their WAB card.

When submitting an application, applicants will be asked to do the following:

  • To confirm that you have been exercising EU Treaty Rights to reside in the State on or before 31 December 2020 and continue to do so.
  • To upload proof of identity and proof of current residence. (passport bio-data page and utility bills)

The INIS website confirms there is no charge applicable for the replacement of the card. Once registration is complete the card will be sent the applicant by Express Post, within 5-10 days

Note that with Brexit coming into effect, the IRP expiry date of all existing non-EEA family members of a UK national reverts to the 31/12/2020 (instead of the expiry date on the current IRP card). This is the date to be included at Section 1.2 of the Online Application Form.

From 1st January 2021, the IRP card (the EUFam Residence card) of all non-EEA family members of a UK national will no longer have a visa exemption effect which permitted them to travel within the EU. If any non- EEA family member of a UK national intends on travelling to another EU Member State after that date, they will need to check the visa requirements for that Member State before travelling.

It is matter of choice for UK nationals who were resident in the State on the 31st December 2020 if they wish to apply for the WAB card. The benefit of applying for the WAB card is that it establishes their rights and entitlements deriving from the Withdrawal Agreement, as opposed to the British citizens who arrive in the State after the 31st December 2020. UK nationals can apply for the WAB card by making an appointment at their local immigration office via the below link. We would highlight that the immigration offices are currently closed due to Covid 19 precautions, so it appears not to be possible for UK citizens to apply for the WAB card immediately.

http://www.inis.gov.ie/en/INIS/Pages/first-time-registration

If any UK nationals or their family members require further information on this matter, Berkeley Solicitors would be happy to advise.

HIGH COURT JUDGEMENT ON TEST FOR DEPENDENCY IN EU TREATY RIGHTS CASES

On 10th June 2020, Mr Justice Humphreys delivered his judgement in the case of Asif Rashid and Qasim Rashid v The Minister for Justice and Equality [2020] IEHC 333.

The first-named applicant is a British citizen, and his brother, the second-named applicant, is a citizen of Pakistan.

The central issue in the case was whether the Minister for Justice had erred in finding that no relationship of dependency had been established between the first and second-named applicants.

The Court ultimately upheld the decision of the Minister for Justice to refuse the second-named applicant’s application for residence based on his dependency on his EU Citizen brother.

Mr Justice Humphreys emphasised that the test for dependency in EU Treaty Rights cases is “definitively to be found in the CJEU jurisprudence, the most helpful summary of which is at paras. 19-28 of Case C-423/12 Reyes v. Migrationsverket”.

The Court found that the concept of dependency as defined in national case law, most notably in the case of VK v Minister for Justice and Law Reform [2019] IECA 232, does not change or add to the test for dependency established by existing CJEU jurisprudence.

In this regard the Court stated at paragraph 10:

“…the test has been phrased in different ways in different cases so the V.K. judgment should most certainly not be treated as a statute imposing another finer mesh of procedural and substantive legal complexity on top of the existing law. The really central point is the one [Baker J] makes at para. 81 of her judgment that “The test for dependence is one of EU law”. Therefore, any paraphrases in national jurisprudence are just that; and any language in any Irish case that is not found in CJEU jurisprudence is not creating or changing the CJEU jurisprudence. The latter remains the primary source of the meaning of dependency irrespective of any decisions at national level.”

The Court stated that the key issues in establishing dependency are the regularity of money transfers to the dependant applicant over a significant period, the necessity of those payments in enabling the dependant to support himself or herself in their country of origin, the financial and social conditions of the dependant, and the demonstration of a real situation of dependence.

Importantly, the Court emphasised that the payment of significant sums on a regular basis to the dependant in the country of origin, will not, by itself, constitute sufficient evidence of dependency.

This judgment of the High Court can be seen as a more conservative approach to the concept of dependency in EU Treaty Rights cases.

The full judgement can be read here.

If you or a family member have queries about EU Treaty Rights, please do not hesitate to contact the office.

UPDATE ON BREXIT AND WHAT IT MEANS FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS EXERCISING THEIR EU TREATY RIGHTS IN IRELAND

At midnight on 31st January 2020, the United Kingdom left the European Union on the basis of the Withdrawal Agreement. This means that the transitional period has commenced and will run until the 31st December 2020.

The Department of Justice and Equality, has published a communication on their website aimed at non-EU/EEA nationals who are residing in the State as the family member of a British citizen.

The Department has confirmed that during this transition period, which will last until at least the 31st December 2020, EU rules and regulations will continue to apply to the family members of British citizens who are currently resident in Ireland, that is to say they will continue to benefit from Directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2015 which provide for the rights of British citizens to live and work in the EU.

Unfortunately, the Minister has yet to clarify what plan is in place for the family members of British citizens who currently hold EU Fam residence cards after the 31st December 2020.

Furthermore, the update is also silent on the policy to be applied to the family members of British citizens who will have EU residence card and visa applications pending at termination of the transition period.

It is indicated that the Department will announce details of arrangements for non-EEA family members of British citizens closer to the end of the transition period.

This lack of clarity on the status of such applications after the 31st December 2020 is disappointing.

Meanwhile, the EUTR Section of the Irish Naturalization and Immigration Service are in delaying issuing decisions in most applications well beyond the permitted timeframes. For example, many of the residence card applications are taking approximately ten months when the EU Regulations require that they are determined in a six-month period.

This delay is very unsatisfactory especially for the family members of British citizens who are now concerned regarding the pending deadline of the 31st December 2020.

It is advisable to regularly check the Department’s website. Berkeley Solicitors will also update the Immigration Blog as further information becomes available.

We understand many people are concerned regarding the uncertain impact of Brexit on their applications and right to reside and access the labour market in Ireland. If you or your family members are affected please do not hesitate to get in contact with our office.

The update can be read in full here.

 

BRITISH CITIZENS AND THEIR FAMILY MEMBERS IN IRELAND- THE RIGHT TO RESIDE IN THE EVENT OF A NO-DEAL BREXIT

As previously highlighted on Berkeley Solicitor’s Immigration Blog, the family members of British citizens resident in Ireland on the basis of EU FAM Residence Cards have received recent correspondence outlining “transitional arrangements” will be put in place in the event of a no- deal Brexit.

There is no clear outline in these letters as to what these transitional arrangements will be.

This has caused much anxiety to the holders of the EU FAM residence cards as highlighted by the Irish Times in their article of the 18th September 2019.

What is not mentioned is this article is that the further information and clarification outlined on The European Commission’s website which currently states as follows:

“Member States have prepared or adopted national contingency measures to ensure that UK nationals and their non-EU family members could remain legally resident in the immediate period after a no-deal withdrawal. To provide further clarity on the situation, the Commission, based on the information provided by the EU27 Member States, makes available an overview table and a Q&A on UK nationals’ residency rights in each of the EU27 Member States.  

Ireland

I am a UK national living in Ireland. In case of a no-deal scenario, what should I do to keep my residence rights after Brexit date? When should I do it?

All UK nationals have a right under the Common Travel Area to live in Ireland.

You do not need to take any action to continue to live in Ireland after Brexit date.

What will my rights be?   

Under the Common Travel Area (CTA), British citizens can move freely to, and reside in, Ireland and can enjoy associated rights and privileges including access to employment, healthcare, education, social benefits, and the right to vote in certain elections.

The Government of Ireland and the UK Government signed a Memorandum of Understanding on 8 May 2019‌, reaffirming their commitment to maintaining the CTA in all circumstances.

More details can be found here

How can I travel to other Member States or cross the EU external borders?     

You will have to carry your passport, and fulfil any visa requirements, which may be introduced by other Member States.

 I have resided in Ireland for more than five years. How can I obtain EU long-term residence status?   

Ireland, does not participate the Directive (2003/109/EC) which deals with long term residence for third country nationals.  Therefore, the EU long-term resident status does not apply for UK nationals in Ireland.

 My family members (spouse, children) are citizens of a third country (neither EU nor UK). What should they do to keep their residence rights?

  1. a) If they already have a residence card issued under EU free movement law, this will be considered as their temporary residence permit until 31 October 2020, i.e. 12 months after Brexit date. After 31 October 2020, i.e. 12 months after Brexit date, they will have to apply for a new residence permit, according to the law that will be applicable at that time.
  2. b) If they do not have a residence card, they will have to apply for a residence permit as soon as possible to regularise their position in the State. For information on the application process, please visit this website inis.gov.ie.”

It appears that the current plan is for family members of British citizens to hold their EU Fam residence card for one year as a “temporary residence card”, whilst the new “transitional provisions are put in place.

This suggests that the family members of British citizens do not have to take any steps as their current EU residence card will serve as their temporary residence permission pursuant to Irish law for the first year at least.

If you or your family members are affected please do not hesitate to get in contact with our office.

The European Commission Webpage can be accessed in full here.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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