Friday, April 18, 2014

WHAT IS THE MINISTER’S POLICY REGARDING THE STATUS OF NON EEA CHILDREN IN THE STATE?

Last year, a client of our office attended GNIB with his wife and son to obtain re entry visas prior to their holiday outside the State. To his shock, our client was informed by both a GNIB officer and an official from INIS that his son was not legally resident in the State, and on this basis he was refused a re entry visa for his son. As such, our clients were unable to travel as planned, and lost the substantial value of their flights. Of more concern to them was the fact they were informed that their son should leave the State immediately, and apply for a visa to enter the State from outside the State in order to regularize his status. 

The Minister’s current immigration policy is that children cannot independently register their status in the State until they are 16 years of age. It has been confirmed to us by INIS on a number of previous occasions that children assume the lawful status of their parent/s until they are 16. If this is the correct position, it appeared clear to us that our clients’ son was in fact lawfully resident in the State, and had at that point acquired over three years of reckonable residence. We calculated his reckonable residence on the basis of his mother’s stamp 3 residence permission, as he entered the State with his mother and resided continuously with his mother in the State. However, why was he refused the re entry visa? The glaring problem was that the Minister’s lack of policy in respect of the status of non EEA children in the State is causing utter confusion, not just for the public, but within the Department and GNIB also. 

Eight months after we first took our client’s instructions , and after numerous letters from our office and threats of High Court proceedings, the Department finally clarified in writing that non EEA children who enter the State accompanied by a parent are deemed to be in the State on the same conditions as the accompanying parent, and they are deemed to have dependant status on that parent. On this basis it was confirmed that our client’s son was eligible for a re entry visa. However, our clients were not reimbursed for the lost expenditure incurred because of that earlier mistaken decision to refuse the re entry visa. 

The lack of clear stated policy regarding the status of children in the State is a huge failing within the current immigration system and urgently needs to be addressed. Many cases concerning children are treated at odds from each other by different GNIB and INIS officials. It is impossible for our clients to understand what are the requirements to have their children’s status regularized and accounted for in terms of reckonable residence. Are they to present their children at GNIB on arrival? What if one parent becomes undocumented, does the child’s status shift and align with the second parent who is undocumented? What status does the child acquire on turning 16? From our experience, some children acquire stamp 2 permission, and some stamp 3 permission. Both residence permissions are unsuitable once the child turns 18, and wishes to attend third level education or become employed on a full time basis.

The current unclear position on the status of children in the State is breach of the Minister’s obligation to apply good administration, and causing unnecessary and unfair hardships for many families. The area requires the Minister’s urgent attention.

Karen Berkeley 

Friday, April 11, 2014

ATYPICAL WORKING SCHEME

We have recently dealt with a number of queries that relate to the applicability of the Atypical Working Scheme. 

This scheme was introduced on the 2nd of September 2013 as a pilot scheme in agreement and cooperation with the Department of Jobs, Enterprise and Innovation. The scheme is under the remit of the Department of Justice. 

We understand that the Atypical Working Scheme was introduced in order to facilitate work permission in circumstances where applicants did not fit squarely within the work permit criteria. The principal circumstances where an applicant may be eligible include the following: 
  • where an applicant is seeking to undertake a short term contract work where a skills shortage has been identified;
  • where an applicant is providing a specialised or high skilled to an industry, business or academic institution;
  • where an applicant is seeking to take up trial employment in respect of an occupation on the highly skilled occupations list;
  • where an applicant is seeking to take up a paid internship. 

These circumstances are not exhaustive and we understand from our own enquiries that the scheme has a degree of flexibility to facilitate non-EEA workers who have secured employment in the State but do not fit within the perimeters of the work permit schemes. We understand that permission is not generally granted for upwards of a 90 day period.

Perspective applicants are invited to contact the scheme directly to check whether or not their particular circumstances may fall for consideration under the scheme. 

Applicants should be aware that there is a non-refundable application fee of €250 and that a designated application form must be completed. A processing time of approximately two weeks applies. Visa required nationals should be note that they must apply for permission under the scheme prior to entering the state and they must then secure an entry visa on the basis of any approval letter issued. 

Further information in relation to the scheme is available here. We would be happy to deal with any queries you may have in relation to the applicability of the scheme.

Rebecca Keatinge

Tuesday, April 8, 2014

STEP FORWARD FOR THE RIGHTS OF TRANSGENDER PERSONS

We are delighted to confirm that we have won a battle with the Department of Justice to fully recognize our client’s change of gender. We had requested that the Minister for Justice and the Garda National Immigration Bureau to amend the Register of Non Nationals to reflect her gender change from male to female. The amendment of identity documents to reflect change of gender was highlighted by our client’s medical team as being a significant part of her change of gender process. However, both the Garda National Immigration Bureau and the Department of Justice initially refused to do so, each indicating that it was not within their remit. 

The Register of Non-Nationals is under the direction of the Minister for Justice and Equality (section 9(1) of the Immigration Act 2004), and it was the Garda National Immigration Bureau’s position that it required written authorization from the Minister in order to register Ms. Loh as female. We submitted to the Department that there is nothing in the section which prohibits the amendment of register to reflect her change of gender. We submitted that the Irish Naturalisation and Immigration Service, and the Garda National Immigration Bureau, were in fact obliged by section 3 of the European Convention on Human Rights Act 2003 to carry out their functions in a manner that is compatible with the European Convention on Human Rights, which necessitated the amendment. 

Ultimately, High Court proceedings were avoided, when advices from the Attorney General resulted in the Department granting our client the permission she required to re register as a female. She was subsequently provided with a GNIB registration certificate and subsequently a travel document reflecting female gender.

The acceptance and recognition of one’s gender is a fundamental right, and we were very proud to have helped our client to achieve her personal goal, while also making a significant step forward for the rights of transgender persons in Ireland. We wish to congratulate her on having the courage to fight this point of public importance to success. 

However, the rights of transgender persons in Ireland remain below accepted international standards. In October 2007, Lydia Foy’s ten year legal battle for a birth certificate recognizing her true gender ended with a favourable High Court decision. The High Court ruled the State in violation of the European Convention on Human Rights Act 2003 and required that it recognize transgender persons in their acquired and true gender. However, despite this progressive victory for the transgender community, today, Ireland is the only EU state without a legal mechanism for recognition of transgender persons. While discussions for a Gender Recognition Bill have begun, several of its proposals have already been deemed unlawful in countries such as Germany and Austria, most notably the requirement of married transgender people to divorce their partners before applying for gender recognition. Thus, while the Gender Recognition Bill may perhaps a step in the right direction, Ireland still appears to be well behind its EU counterparts with respect to recognition of transgender persons. Nearly seven years past the High Court ruling on the issue, the State has failed to respond, leaving its transgender citizens on the fringe, and opening itself to heavy criticism from the international human rights community.

Karen Berkeley 

Monday, March 31, 2014

STATELESS STATUS IN IRELAND

We were pleased to see the media interest over the weekend in our landmark case concerning the first stateless declaration in Ireland;



We hope this case will help other persons in Ireland who are Stateless and trying to gain legal status, stateless travel documents and naturalization.

Saturday, March 29, 2014

FIRST DECLARATION OF STATELESSNESS IN IRELAND

We are delighted to announce that on the 27th March 2014, the Irish Naturalization and Immigration Service, on behalf of the Minister for Justice and Equality, issued what we believe to be the first declaration of statelessness in the State. The declaration was issued to our client on foot of his pending High Court proceedings again the Minister for Justice. 

Our client is from Estonia, and is of Russian ethnicity. At the time of his birth, this area was within the territory of the USSR. In 1991, when Estonia became an independent State, his home town, with mostly Russian inhabitants, became part of the new territory of the Estonian State. The newly formed Estonian government did not issue Estonian citizenship to all residents within the territory of Estonia. Persons of Russian ethnicity, like our client, were issued with an “Alien’s Passport”, identifying their citizenship as “undefined”. 

Our client has resided in Ireland since 2002, but until now could not obtain recognition of his stateless status because no legal or administrative process has been set up to deal with such applications. This is despite Ireland’s obligations pursuant to the 1954 Convention relating to the Status of Stateless Persons, which Ireland has ratified. 

In February 2013, Brophy Solicitors submitted an application to the Minister for Justice and Equality for a Stateless Travel Document for our client, and the application was refused because he did not have a letter form the Minister confirming his stateless status in the state.. We then applied for a declaration of statelessness, and on receiving no response three months later, we issued High Court proceedings against the Minister. 

We are delighted for our client and his family that after 14 years, he has finally acquired recognition of his legal status as a stateless person, and we wish him and his family a big congratulations! 

However, we remain very concerned for the other stateless persons in Ireland who are currently left in a legal limbo. We highlight the urgent need for a legal and administrative process to be set up for the recognition of stateless persons in Ireland.

Karen Berkeley