Thursday, October 16, 2014

DELAYS IN DECISION-MAKING IN IMMIGRATION CASES

We were recently instructed by a very vulnerable single mother with significant mental health difficulties. She had previously been granted stamp 4 permission to remain in the State and we were instructed to assist with an application for renewal of that permission pursuant to section 47 of the Immigration Act 2004.

At the time we put in the application we had not yet received a medical report or medical records to substantiate our client’s significant mental health difficulties. Rather we submitted the application on a provisional basis relying on personal statements from the applicant and her daughter substantiating the difficulties she had had with serious mental illness and detailing the difficulties that she would face should she be expected to return to her country of origin. We had prepared detailed submissions to send to the Department setting out our arguments with respect of the mental health position and we were awaiting a medical report from our client’s psychiatrist before submitting these further submissions.
To our surprise and to our client’s enormous relief, before we had even received the medical report and records and finalised our further submissions, our client was granted an extension of her leave until 2017. Our client is extremely happy to have had her application determined so quickly. In fact our original letter was dated the 10th of September 2014 and a positive decision was received 15 days later.
This is obviously a very positive development for our client especially given her vulnerability however it shows the considerable inconsistency in the timeframes within which applications are being dealt with by the Department.
While working on this case, we have also been in correspondence with the Department in relation to a case where the applicant has had an application for leave to remain pending since February 2009. We are now at the point of issuing High Court proceedings to compel the Department to make a decision. It is a little confusing that that type of application must wait five years to be determined while a renewal application can take just 15 days even when in the latter, all the information has not yet been provided to the Department.
We hope that the decision making process will become consistent and streamlined and more efficient in coming months. At present, it is unpredictable and difficult for applicants some of whom wait extremely long periods for a decision on vital matters such as their ability to remain lawfully in the State
Rebecca Keatinge
Brophy Solicitors

SUCCESS IN FAMILY REUNIFICATION APPLICATION

One of our clients received a positive decision this week in a long-running family reunification case we have been advising on. 

The application was made in September 2013 by a national of the Democratic Republic of Congo for family reunification with his wife. At the time of the application, the wife was a recognised refugee living in very difficult conditions in a refugee camp in Tanzania. She was also pregnant and gave birth in the refugee camp hospital in April 2014.

The application was well supported by documentation substantiating the relationship, the contact between the couple, the addition of a new born baby, and the dire conditions of the family members. Notwithstanding the documentation provided, DNA evidence was requested by the Department of Justice and Equality in order to satisfy them of the relationships between the parties.  This created a further delay as the family members had to travel a considerable distance to the capital in order to attend the designated clinic for testing.

Positive DNA results were received shortly after the testing and the application, just over a year since the application was made, has now been determined in the favour of our clients to their enormous relief.

Rebecca Keatinge
Brophy Solicitors

 

Friday, October 10, 2014

PROPOSED CHANGES TO THE STUDENT IMMIGRATION REGIME

Minister Frances Fitzgerald recently announced major reforms of the Student Immigration and International Education Sector. A policy statement entitled Regulatory Reform of the International Education Sector and the Student Immigration Regime is available on the INIS website and sets out the key reforms, the most significant of which appears to be proposed changes to the student work concession. 

The policy statement recognises the significant contribution that international students make to the Irish economy, which is estimated as in excess of €800 million. The policy proposes to introduce higher regulation of the third level education sector in Ireland to ensure that the sector provides high quality service and is not a route for a non EEA students to access the labour market in Ireland but rather a route to attain their personal education aspirations. The view of the Department of Justice & Equality is that some education providers have been acting as little more than “visa factories”. There is recognition in the policy that international students are in a vulnerable position but the main thrust of the policy is that the system is to be significantly reformed to create a robust regulatory environment. 

There are three pillars to the new regulatory framework. 

Under the first pillar, the Department proposes to replace the current internationalisation register, which specifies eligible programmes for non-EEA students and to replace it with an Interim List of Eligible Programmes for Student Immigration Permission (ILEP), which will be in place from the 1st of January 2015. 

The second pillar introduces an inspection and compliance regime such that INIS and the GNIB will have an enhanced inspection function. There is direct reference to the National Employment Rights Agency (NERA) becoming involved to investigate any abuse of the student work concession and there is also reference to involvement of the Revenue Commissioners and the Department of Social Protection. In addition there is a proposal to set up a compliance working group to focus on the student work concession. 

The final pillar is what we believe will be the most significant change for non-EEA students and is described in the policy as a “strengthening” of the terms of the student work concession. What this in fact amounts to is a restriction on the work concession. At present, non-EEA students attending a full time programme on the Internationalization Register are permitted to work up to 20 hours per week during term and up to 40 hours per week outside of term. It is the view of the Department that permission to work cannot be justified in all circumstances. The policy document proposes that from the 1st of January 2015, the work concession will be aligned and essentially restricted such that students can only work 40 hours per week during the months of May, June, July and August and from 15th of December to 15th of January inclusive. There will therefore be no flexibility as to when students work 40 hours per week and when they work 20 hours per week. The policy states that the set periods during which students can work 40 hours per week will be irrespective of the programme timetable. It is unclear how non-EEA students will be able to manage working and attending a full time course where the course runs during the summer months and how the new policy will work in practice. 

This policy document is the most significant reform of the student immigration regime since the changes implemented in 2011. They will have wide ranging impacts on non-EEA students seeking to come to Ireland after 1st of January 2015 and they will have a knock on effect on the visa application process and the financial requirements for new students coming to Ireland particularly in light of the proposed amendments to the work concession. To our mind, it is likely that students will struggle to financially support themselves through studies in Ireland if they are restricted in when they can work. It is unlikely that employers will be able to offer employment during set periods given that the set periods do not take account of the need for flexibility in the employment sector.

Further information on the changes can be found on the INIS website here. 

Rebecca Keatinge

Thursday, October 2, 2014

Overhaul Of The Work Permit Regime

The Employment Permits (Amendment) Bill 2014 came into force on 1st October 2014 implementing significant changes to the employment permit regime in Ireland. Full details can be viewed the Department’s website which has now been updated to reflect the changes and this blog highlights some of the key changes. 

General Employment Permit

The General Employment Permit has been introduced and essentially replaces the previous Work Permit Employment Permit. There are three notable changes to this permit. 

Firstly the ineligible categories for employment permit list has been substantively amended. This list specifies occupations that are not eligible for a permit, in circumstances where the salary is under €60,000. The list is both more specific and expansive than the previous list and specifically names a broad range of occupations for which a work permit will not be available. Managers in a range of sectors including hospitality, health and retail are included together with a number of positions in financial administration. Several new occupations are included including legal associate professionals, estate agent and auctioneers and a range of technicians in the area of planning, architecture and engineering. A major change is the inclusion of chefs on this ineligibility list which covers chefs, butchers, fishmongers and bakers but makes an exception for executive chefs, head chefs, sous chefs and specialist chefs specialising in cuisine originating from a non-EEA state. This much expanded list is likely to have a wide ranging impact on potential applicants who may find that their occupation renders them ineligible for a work permit under the new provisions. 

A further change referred to in our previous blog post is the re-introduction of the 50:50 rule. In the guidelines the Department states that an employment permit will not issue unless at the time of application at least 50% of the employees in a firm are EEA nationals. The 50:50 rule is waived in the following circumstances: A start up company where the employer has been registered with the Revenue as an employer within the last two years and the employer has a letter of support from either Enterprise Ireland or IDA Ireland; an employment permit in force at the time of commencement of the 2014 Act i.e. the Act does have retrospective effect; where on the day of the application the employer has no employees and the foreign national would be the sole employee;

The final notable change is the re-introduction of the Labour Market Needs Test that it appears must be satisfied for all applications, although this is not expressly spelt out in the guidelines. We are seeking clarification on this point from the Department. The Labour Market Needs Test requires an employer to advertise the position for a specific period in order to establish that there are no Irish or EEA nationals available to take up the position. There are limited circumstances where the test need not be satisfied that are set out in the guidelines. 

Critical Skills Employment Permit

The Green Card has now been replaced by a Critical Skills Employment Permit. There have not been significant amendments to the eligibility criteria, however, the highly skilled eligible occupations list has been amended. There is again more precision and detail in the eligible occupations. It is still a requirement that when the annual remuneration is between €30,000 and €60,000 an applicant’s proposed occupation must be contained in the highly skilled eligible occupation’s list. Where the annual remuneration is over €60,000 the specific occupation is not relevant provided it is not included on the ineligible categories of employment list. 

Of note is the fact that an employment permit will not be granted to companies unless 50% or more of employees in the firm are EEA nationals at the time of application. There is again an exemption with respect of start up companies within three years of their establishment and which are supported by the Enterprise Development Agencies, Enterprise Ireland or IDA Ireland. 

Other changes

The new regime creates a number of new permits including a Sport and Cultural Employment Permit, an Exchange Agreement Employment Permit and an Internship Employment Permit. The system retains the dependence/partner/spouse Employment Permit, Intra-Company Transfer Permit and Contract for Services Permit and there is a specific Reactivation Permit, which is designed for situations where a foreign national, who entered the State on a valid employment permit but who fell out of the system through no fault of their own, can work legally again. 

It is now a requirement that business users make payments by electronic funds transfer but individuals can still make paper-based payments i.e. by cheque, bank draft or postal order. There are no notable changes in the fee structure. 

We will follow with interest how the new system operates in practice and provide further updates on our blog. 

Rebecca Keatinge

Wednesday, October 1, 2014

Immigrant Investor Programme Update

Individuals considering making an application under the Immigrant Investor Programme should be appraised of the current guidelines that apply a number of new criteria that must be satisfied for an application to be successful.

The most significant development is that investors must establish that they have a minimum net worth of €2 million. There is a specific net asset section on the application form that must be completed and applicants must also provide an explanation of all activities for the previous 12 months period indicating their income, investments and loans. It is clear that the Department requires a comprehensive picture of the applicant’s financial position over the last twelve month period so that they can be satisfied that the applicant has legally acquired a minimum net worth of €2 million. 

The eligible investments available to any applicant have not changed considerably and include one of six forms:- Immigrant Investor Bond, Enterprise Investment, Investment Fund, Real Estate Investment Trusts, Mixed Investment or Endowment. The current guidelines provide clarification and detail in relation to the various categories of acceptable investment. 

The same requirements still apply with respect to provision of evidence of funds for investment and evidence of the source of those funds. The Department will consider the following sources of funds:- business and investment activities, Deed of Sale, inheritance and divorce settlements. 

Evidence that the funds can be transferred to an Irish financial institution must be provided and there is now explicit reference in the guidelines to jurisdictions that have controls over the transfer of currency. Our own experience is that such controls may present an obstacle to certain applicants. 

Finally the good character requirement continues to apply. Any applicant as well as their nominated family members who are over the 16 years old must submit a statement of character from the police authorities of each country in which they have resided for six months during the 10 year period prior to making the application. 

The requirement that the individual evidence that they are of €2 million net worth is likely to limit the number of applicants eligible to apply under the scheme. Our own experience is that the Start Up Entrepreneurship Programme (STEP) is a more attractive alternative, requiring a minimum investment of €50,000. It remains to be seen whether a significant number foreign investors will avail of the investor scheme in Ireland when other countries offer comparable schemes that do not have such high financial thresholds.


Rebecca Keatinge