Thursday, January 29, 2015

ANNUAL REVIEW OF IMMIGRATION IN IRELAND – 2014

Earlier this week, Minister for Justice and Equality, Frances Fitzgerald published the annual review of Ireland’s immigration related activity for the year 2014. In the report, the Minister included immigration statistics, as well as achievements in the area of immigration from the previous year and the Department’s priorities for 2015.

Minister Fitzgerald, when introducing the report, noted the record-breaking number of new visa, residence and citizenship applications received by the Irish Naturalisation and Immigration Service during 2014. Approximately 172,000 new applications were received by the INIS during 2014 while a total of 179,000 were processed. The Minister also alluded to “further ambitious reforms” to the immigration system, which will be a priority for this year. Some of the reforms mentioned include the introduction of a single procedure for the asylum system and the completion of the civilianisation of border control at Dublin Airport. The British Irish Visa Scheme was also referred to in the report. Minister Fitzgerald announced that the target for 2015 is to complete the worldwide rollout of countries which may benefit from this initiative; India will be the next country in which the scheme will be commenced.

As Minister Fitzgerald stated in the report; the civilianisation of border control at Dublin Airport is a key priority for the year 2015.

The report had also shown an increase in the number of students given permission to study within the State. Compared to statistics from 2013, there was an increase of 3,700 students being granted permission to study in the State in 2014. In her report, Minister Fitzgerald introduced a new, government approved, package of reforms for international education and for the student immigration system. The purpose of these reforms is to “provide certainty and clarity”, to “prioritise education over work” and to further align the student migration system with the strategic objective. The reforms include important amendments to the current student work concession.

The report also addresses the reduction of processing times for various applications. Since the introduction of reforms to the citizenship process, announced in 2011, over 90,000 applications have been decided on and the processing times for standard applications has been reduced from 31 months to less than 6 months.

According to the report, there are approximately 95,000 non-EEA nationals with permission to remain in the State; as compared to the estimated figure of 107,000 at the end of 2013. The majority of these are here for work or study. The top 6 nationalities that are registered are; Brazil (12%), India (11%), China (9%), USA (7%), Nigeria (6%) and Philippines (5%). The report also notes that the approval percentage for entry visas in 2014 was 91%.

In the report, the Minister also confirmed that there will be legislative reform to the asylum system with the aim of reducing structural delays and reducing time spent by applicants in direct provision. This will be another key priority of the government for the year and the Minister expects to receive approval to publish the Protection Bill in the near future. These reforms are extremely long overdue.

Other topics have been analysed in this report, such as the taking of biometrics and the use of e-gates at Dublin Airport. The report can be found on the Irish Naturalisation and Immigration Service website here: http://www.inis.gov.ie/en/INIS/Pages/Immigration%20in%20Ireland%20%E2%80%93%202014

Rebecca Keatinge
Brophy Solicitors

Friday, January 23, 2015

“PERSON OR NUMBER?” ISSUES FACED BY IMMIGRANTS ACCESSING SOCIAL PROTECTION – JANUARY 2015

This week, the Minister of State for Equality, New Communities and Culture, Aodhán Ó Ríordáin, launched the report, Person or Number?, which was commissioned by a number of human rights organisations, including NASC, the Irish Immigrant Support Centre and FLAC. It is the second report of its kind with the first being published in 2012. The report examines the hardships faced by immigrants seeking to access social protection services in Ireland. 

The report is based on the analysis of 54 cases where immigrants encountered difficulty in accessing social protection, 35 of which are highlighted in the report. Many of these cases involved more than one issue. The report found several incidents of “serious customer service issues”, including some reports of racism and general rudeness towards immigrants. One such immigrant was allegedly told “‘if you are not happy, go back to ****”, in a manner described as “racist and aggressive”. Another immigrant was told “too many people from **** are coming here to take benefits for free”.

Fiona Hurley of the Irish Immigrant Support Centre, said that “Customer service issues need to be tackled as a priority, as it is unacceptable that anyone should be subjected to any kind of aggressive or abusive behaviour or racism when they present to a State service.” The report noted that while only a few of the cases examined have alleged such behaviour; any instance of this behaviour is exacerbated by the fact that such remarks are coming from someone who is effectively representing the State.

Another difficulty faced by immigrants that is highlighted in the report is poor provision of information. In three of the cases examined, people were told by their local Social Welfare Office that visiting family abroad for up to 3 weeks would not pose any risk to their payments. This information was false because in each case, the people were told when they returned to Ireland that they no longer satisfied the Habitual Residence Condition. This left each person without income while they were waiting for the outcome of the appeal of the decision. The report found that several cases had also shown that people were not told by their Social Welfare Office that they could go to their local Community Welfare Office to apply for short-term financial assistance. The report also found “significant knowledge deficits” among frontline staff regarding the qualifying criteria for some payments. To combat this, the report recommends that an audit of the level of knowledge of frontline staff would highlight areas where training is needed.

Many of the cases examined in the report illustrated the problem of significant delays in processing applications. While this is an issue for most applicants, such delays can cause significantly more difficulty for immigrants, particularly when many are unaware that they can apply for short-term assistance from their local Community Welfare Office. If immigrants do apply for this, they still must satisfy the Habitual Residence Condition if they are to receive Social Welfare payments. To help reduce these delays, the report recommends that decisions on short-term assistance should not require that the Habitual Residence Condition be satisfied as it will be examined in the initial application for Social Welfare. The report also notes some deficiencies with how the Habitual Residence Condition is applied and it also includes recommendations on how to remedy these deficiencies, for example, periodic examinations of Habitual Residence Condition decisions.

While these are some of the key issues that are noted in the report several other issues, including recommendations on how to remedy them, are also included, such as domestic violence and decisions based on speculation.


The full report is available online and can be found here: http://www.livinginireland.ie/images/uploads/Person%20or%20Number.pdf



Rebecca Keatinge
Brophy Solicitors

 

Friday, January 16, 2015

NO REQUIREMENT FOR ENTRY PERMIT TO THE UK FOR EU FAM RESIDENCE CARD HOLDERS

Many of our clients who are lawfully resident in the State as the family members of EU citizens pursuant to Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). According to the EU Directive, such persons are entitled to travel to other EU Member States without the requirement to first apply for a visa. Article 5 (2) of the Directive makes this very clear;

“Possession of a valid residence card referred to in Article 10 shall exempt such family members from the visa requirement”

However, in practice, many clients experience difficulties in entering the UK without a visa. We have heard of a number of cases in which the EU family member was not permitted entry despite carrying the EU Fam residence card. Many complaints have been made to the European Commission against the UK in this regard.

Recently, the European Court of Justice has had an opportunity to hear a case directly on this point - 
Sean Ambrose McCarthy and Others v Secretary of State for the Home Department (Case C-202/13)

The judgement is very helpful to all those EU Family members travelling between UK and Ireland.

The applicant, Mr McCarthy, is an EU citizen holding dual Irish and British nationality. His wife is a Columbian national who holds a valid ‘residence card of a family member of a Union citizen’ (‘residence card’). This card was issued by the Spanish authorities, the State in which the couple and their daughter have been resident since 2010. The family also own property in the United Kingdom and travel there frequently. The legal issues in this case arose from the UK’s requirement that holders of such a residence card must apply for an entry permit (‘EEA family permit’) before they are permitted to enter the State. These family permits are valid for six months and must be renewed in person at a UK diplomatic mission, necessitating Ms McCarthy to travel from their home in Marbella to the diplomatic mission in Madrid. 

The family argued that the provisions in UK law infringed their rights of free movement. They brought a case to the High Court of Justice of England and Wales, who in turn referred a number of questions to the ECJ; namely whether Directive 2004/28 requires family members from non-Member States to obtain an entry visa prior to travel. 

In a decision issued on the 18th December 2014, the ECJ held that the above Directive was applicable in the current case, given that it applies to any EU citizen exercising their right to freedom of movement in another State. The Court further held that by requiring family members to obtain an entry permit in addition to their residence card, the UK was imposing “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive”. The Court ultimately found that the provisions could not be interpreted as to allow this additional burden, even if the objective is the prevention of borders being crossed illegally. In that instance, Member States may have a right to examine the authenticity of documents or data, but are not permitted to determine the conditions of entry for persons covered by the necessary provisions in EU law. 

Additional Reading:

Judgment in Case C-202/13: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160942&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=216851


Court of Justice of the European Union Press Release:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf

 

Thursday, January 15, 2015

CHANGES TO IMMIGRATION STAMP 2 HOLDING NON-EEA STUDENTS' EMPLOYMENT ENTITLEMENTS; EFFECTIVE FROM 1ST JANUARY 2015

In September 2014, the Ministers for Education and Skills and for Justice and Equality announced changes to the work concessions for Immigration Stamp 2 holding non–EEA students, along with other reforms to the regulatory regime for international education. These changes came into effect on the 1st of January 2015.

Prior to these reforms; non-EEA students were permitted to work up to 20 hours per week during the college term and up to 40 hours during vacation periods. As these periods are set by the college itself, there have been severe variations between work entitlements of non-EEA students and as such, these entitlements have come under scrutiny. Due to the reforms put into effect by the Ministers for Education and Skills and for Justice and Equality, the working permissions have been standardised and is no longer reliant on the term and vacation periods set by the individual institution. Students holding a valid immigration stamp 2 are now permitted to work 40 hours per week for a 4 month period, which starts from the 1st of May until the 31st of August and also from the 15th of December to the 15th of January. At any times outside these dates, they will only be permitted to work 20 hours per week. The hours specified are the maximum that the student can work at any given week, even those whom have more than 1 employer. Employing a student beyond these permitted hours will be an offence under the Employment Permits Acts.

However, students who achieve an honours degree or higher are entitled to a 12 month extension to their stamp 2 visa and are permitted to work up to 40 hours per week during this time. Students who achieve an ordinary level degree are entitled to a 6 month extension. Students hoping to apply for this graduate scheme must have a valid stamp 2 permission and they must also provide a transcript of their final results from the awarding authority. If the extension is granted, the student may work without an employment permit and can be employed on contract, in an internship, or on probation. If employment is offered beyond the duration of the extension, an employment permit will be required.

Students who obtain an extension to their stamp 2 visa as a result of this scheme may engage in any form of employment they desire, although, they are not permitted to engage in self-employment or to work as taxi drivers. Furthermore, it is anticipated that more forms of employment will be added to this list of restricted activities during the course of 2015.

The implementation of these reforms has not been effected by the three week delay announced for the implementation of the new ILEP course list.

Karen Berkeley 
Brophy Solicitors


REQUIREMENT FOR ENTRY PERMIT TO THE UK FOR EU FAM RESIDENCE CARD HOLDERS

Many of our clients are lawfully resident in the State as the family members of EU citizens pursuant to Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). According to the EU Directive, such persons are entitled to travel to other EU Member States without the requirement to first apply for a visa. Article 5 (2) of the Directive makes this very clear;

“Possession of a valid residence card referred to in Article 10 shall exempt such family members from the visa requirement”


However, in practice, many clients experience difficulties in entering the UK without a visa. We have heard of a number of cases in which the EU family member was not permitted entry despite carrying the EU Fam residence card. Many complaints have been made to the European Commission against the UK in this regard.

Recently, the European Court of Justice has had an opportunity to hear a case directly on this point:

Sean Ambrose McCarthy and Others v Secretary of State for the Home Department 
(Case C-202/13)

The judgement is very helpful to all those EU Family members travelling between UK and Ireland.

The applicant, Mr McCarthy, is an EU citizen holding dual Irish and British nationality. His wife is a Columbian national who holds a valid ‘residence card of a family member of a Union citizen’ (‘residence card’). This card was issued by the Spanish authorities, the State in which the couple and their daughter have been resident since 2010. The family also own property in the United Kingdom and travel there frequently. The legal issues in this case arose from the UK’s requirement that holders of such a residence card must apply for an entry permit (‘EEA family permit’) before they are permitted to enter the State. These family permits are valid for six months and must be renewed in person at a UK diplomatic mission, necessitating Ms McCarthy to travel from their home in Marbella to the diplomatic mission in Madrid.

The family argued that the provisions in UK law infringed their rights of free movement. They brought a case to the High Court of Justice of England and Wales, who in turn referred a number of questions to the ECJ; namely whether Directive 2004/28 requires family members from non-Member States to obtain an entry visa prior to travel.

In a decision issued on the 18th December 2014, the ECJ held that the above Directive was applicable in the current case, given that it applies to any EU citizen exercising their right to freedom of movement in another State. The Court further held that by requiring family members to obtain an entry permit in addition to their residence card, the UK was imposing “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive”. The Court ultimately found that the provisions could not be interpreted as to allow this additional burden, even if the objective is the prevention of borders being crossed illegally. In that instance, Member States may have a right to examine the authenticity of documents or data, but are not permitted to determine the conditions of entry for persons covered by the necessary provisions in EU law. 
Brophy Solicitors