Thursday, February 21, 2013

RESIDENCE PERMISSION POST SULAIMON



The Supreme Court judgement in the case of Sulaimon v Minister for Justice Equality and Law Reform, [2012] IESC 63 (2012), delivered on the 21st December 2012, has created much needed clarity in the Minister’s administrative practice of issuing residence permission to non nationals in the State.

The Supreme Court upheld the High Court’s finding which confirmed that the Mr Sulaimon’s periods of residency in the State were reckonable for Naturalization purposes despite that he was not registered with the GNIB for a short period. This conclusion was reached on the logical basis that the Minister for Justice had issued a letter to Mr Sulaimon granting him permission to remain, and therefore the Supreme Court judges deemed that he was at all times legally resident during the permitted period stated in that letter.   While this seems to be quiet an obvious finding, in fact, it was not so obvious because the Minister of Justice had always argued that Mr Sulaimon’s lawful residence did not commence until the subsequent date on which he registered at the GNIB  - thus having the very significant consequence that he was three days short of the required reckonable residence period for his daughter to be entitled to Irish citizenship by birth.

The Supreme Court judges fully dismissed the Minister’s arguments out of hand. The judges confirmed that the Mr Sulaimon’s first permission was operative from when he received the letter indicating that the Minister had granted him permission to reside. They indicated that this was the only logical conclusion given the wording of Section 9 (1) (a) of the Immigration Act 2004  -

“A register of non nationals who have permission to be in the State shall be established and maintained by registration officers in such a manner as the Minister may direct”

Therefore, a person must already have permission to remain in order to be registered on the Register of Non Nationals by the Immigration officers.

The Supreme Court emphasized that the granting of permission and registration are two separate acts, distinct from each other.  Thus, the letter from the Minister is the grant of permission and the GNIB’s role is to provide the documents evidencing the registration of such permission.

The effect of the Sulaimon case was that the Department of Justice subsequently stopped issuing residence permission letters, in order to reassess their administrative system. Many of our clients have been left undocumented as a result.

Today, we have received the Minster’s new wording in respect of the granting of residence permission in light of the Sulaimon case. The letter was issued to a client of our office who was today granted a three year stamp 4 permission to remain on the basis that he is the de facto father of an Irish citizen child (Congratulations to our client!). The decision letter states that the Minister has granted the applicant residence permission from the date of the letter. It is stated that the residence permission is conditional on a number of factors (which will depend on what basis the residence permission is granted). The letter states that the applicant is required by law (Section 9 (2)(a) of the Immigration Act 2004) to register this permission at his local Immigration Registration Office as soon as possible. The letter states that a failure to register is an offence, and may in itself constitute a ground for revocation of the residence permission.  The letter states that the Immigration Officer will register and issue the applicant with a Certificate of Registration provided they are satisfied the applicant has met the necessary requirements and paid the appropriate fee.  The letter states that the Certificate of Registration, together with the letter granting permission to remain, will entitle the applicant to work without the need for a work permit. Finally, it is stated that the applicant should apply to his local District Headquarters Station for renewal of the residence permission two weeks in advance of the expiration date. 

The newly worded letter makes it clear the legal residence permission now commences at the date of the decision letter. However, on the renewal of this residence permission, the Minister is delegating his power to the GNIB, who will issue the renewed residence permission on behalf of the Minister. Therefore, at the renewal stage, reckonable residence will commence at the date of registration. To ensure no gap occurs in ones continuous reckonable residence when renewing permission to remain, (a matter very relevant to eligibility for Naturalization), it is essential to ensure that registration occurs prior to the expiry of the residence permission.

Brophy Solicitors
21.02.13




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