UPDATE ON STAMP 0 AND STAMP 3 RESIDENCY PERMISSIONS

Recently we have received queries from confused clients whose Stamp 3 permission has been changed to the ‘low level immigration permission’ that is Stamp 0. There are notably much similarity between these permission types, hence there is much confusion as regards to which stamp may be applicable to various circumstances.

In order to provide clarification, it is firstly necessary to understand what exactly each permission entails:

STAMP 0

Stamp 0 residence permission was implemented by INIS in December 2011. The procedure implement the stamp was vague, and unfortunately not much clarification has since followed.

What do we know?

According to the INIS website guidelines, Stamp 0 is ‘a low level immigration permission that allows a person to remain lawfully in Ireland for a specific temporary and limited purpose. It is not intended to be a pathway to any more permanent form if immigration’.

This appears to imply that stamp 0 does not provide reckonable residency required for naturalisation. However, on the contrary, it has been confirmed to us by the Department previously that the stamp does indeed count for reckonable residency. We are currently seeking clarification from the Department on this point.

There is no specific application process but rather the applicant will seek permission in the normal way.

It is noted a service provider, or academic, or an individual in exception humanitarian circumstances are examples of those who may avail of this permission.

Holder of the permission may not work or engage in a trade, business or profession, unless specified in INIS letter.

It is further noted that the stamp is provided on the basis that the holder receives no State beneifts, and that they are self sufficient through personal resources of financial support from an employer or family while present in the State.

As with all Immigration permissions, breaching a condition of the permission may result in a permission being revoked or not being renewed.

STAMP 3

A holder of stamp 3 per mission is entitled to remain in Ireland on the basis that they do not enter employment, nor engage in any business or profession and do not remain later than the specified date.

Main categories of those who are granted this permission include: non EEA visitors, non EEA retired person of independent means, non EEA Minister of Religion and member of religious order, non EEA spouse/dependent of employment permit holder.

Stamp 3 permission is reckonable, and thus after 5 years a holder is eligible to apply for naturalisation. 5 years of stamp 3 permission also entitled one to apply Stamp 3 Long Term Residency, which is valid for a further 5 years.

It is submitted that the vital differences in these permissions is that Stamp 0 does not provide for a more permanent form of residency and it not reckonable.

Confusion?

In consideration of the above information, in what regard has there been confusion in relation to these permissions?

Firstly, as regards clients who have been granted Stamp 0, the renewal process in certain cases, where there has been no change regarding the conditions at the time of granting of the permission, has been met with some difficulty, with the Department providing new application numbers, inferring it is indeed a new application, rather than a more straightforward renewal process.

Secondly, we have seen stamp 0 issued to many non EEA retired nationals of independent financial means, and non EEA dependents on employment permit holders in that state. This seems contrary to the INIS guidelines which explicitly state such persons are eligible for stamp 3 permission. Additionally, people who have been granted stamp 3 person on such basis have prior to the impending renewal of the permission been notified that their status will change to being that of stamp 0. We find it confusing that the decision has been taken to make such amendments, when there has not been any significant change in the circumstances of such persons. There is much confusion as to whether this new permission is applicable regarding reckonable residency. As noted above, we are seeking clarification on this point, and will post on this matter once we have received an adequate explanation.

We urge that greater clarification for this change in permission be provided. The guideline note appears to provide information contrary to that which has been stated by the Department. We further stress the need for a more straightforward stamp 0 renewals process, as the current manner with which it is being dealt with cannot be deemed as an efficient nor effective system.

Naomi Pollock

Brophy Solicitors

EU TREATY RIGHTS: RIGHTS OF RESIDENCE IN THE EVENT OF SEPARATION

We are currently challenging a decision of the Department to revoke our client’s permission to reside in the State in circumstances where he has lived with his Union citizen wife for five years and is now separated but not divorced. As we have noted in our previous blog posts, there appears to be a lacuna in Directive 2004/38/EC and the Regulations with respect of residency rights of third country national spouses who have separated from their Union citizen husband or wife but have not yet obtained a divorce. This is one such case in which we are arguing that our client retains his right to reside despite the separation pursuant to Article 13, Directive 2004/38/EC. 

Our client is a non-EEA national who married and resided with an Union citizen between September 2005 and March 2010. During the period of their marriage, both husband and wife were working or studying. The couple separated in March 2010 and our client’s wife has now left the State. The Department then sought to revoke our client’s permission to reside in the State on the basis that his marriage to an Union citizen had broken down. We responded making submissions that our client retains his right to reside in the State pursuant to Article 13 of Directive 2004/38. 

Article 13(2) relates to the right of residence by non-EEA family members in the event of divorce, annulment of marriage, or termination of registered partnership. The relevant section states:  

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State ...

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

On behalf of our client, we are arguing that it would be contrary to our Constitution’s recognition of the special position of the family in the State, the need to protect the institution of the family, and the restrictions which the State impose on the obtaining of divorce (including the need to live apart for four years), to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC. 

In arguing that the residency protections in Directive 2004/38/EC should extend to our client who is separated, but not divorced, we are relying on Recital 15 of the Directive that provides:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.”

It appears from the recital, that the provisions of Article 13 of Directive 38/2004/EC should be purposively construed such that a third national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. Otherwise, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence which appears to be an encouragement to divorce, and is contrary to our Constitution. A further difficultly in Ireland is that under Irish law a couple must live apart for four years before a decree of divorce can be granted.

We will keep you updated on the progress of our challenge. If you have any questions or comments, please contact us!

Brophy Solicitors

12.10.11

EU TREATY RIGHTS UPDATE: RIGHTS OF OTHER FAMILY MEMBERS

A very recent decision of the UK Upper Tribunal (Immigration and Asylum Chamber) explores the scope of Article 3(2) of Directive 2004/38 and what constitutes an ‘other family member’ or OFM. The full text of the decision in Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) issued on 22^nd August 2011 is available here.

The case concerned a German national, of Nigerian origin, who was exercising his EU Treaty rights as a worker in the UK. An application was made for permission to reside in the UK for two of his dependants, relying on Article 3(2) of the Directive 2004/38. The German national had been providing the two applicants with financial support to Nigeria but had never lived with them in the same household. The application had been initially refused and appealed unsuccessfully, but was appealed further to the Upper Tribunal giving rise to these proceedings.

Article 3 (2) of Directive 2004/38 states:

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)                        any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)                        the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

This Article therefore extends rights of free movement to other family members not covered in Article 2(2) of the Directive who include in summary: the spouse, partner, direct descendants under 21 of the EU national or spouse/partner, or dependant direct relatives in the ascending or descending line of the EU national or spouse/partner.

A core issue determined in Moneke was whether, to qualify as an ‘other family member’ for the purposes of Article 3 (2), the ‘other family member’ must be dependent on the EEA national and have resided together in the same household with the EEA national.

On this issue, Mr Justice Blake determined as follows: “A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.”

A second core issue assessed by Mr Justice Blake was whether the term “in the country from which they are from ”, as per Article 3 (2)(a), refers to either the EEA national or the other family member. He concluded that the term “they” was intended to mean the other family member, and the country from which they have come from means either their country of origin or the country from which they are arriving.

The Upper Tribunal took a purposive reading of the Directive. It was recognised that in an age of trans-national marriages, there will be increasing numbers of EEA families where the EEA national has not lived in the country where his spouse’s relatives live and concluded:

“We cannot accept in the absence of clear legislative words that enormous numbers of “foreign” OFM dependants are excluded from the scope of the Directive by the happenstance of international geography …

An interpretation that cuts all these applicants out of consideration in limine would appear to be discriminatory on the grounds of national origin without any justification for such an approach. We are entitled to interpret EU legislation in the light of the fundamental principles of EU law and these include the principle of non discrimination reflected for example in Article 21 of the EU Charter on Fundamental Rights.”

This decision provides some welcome clarification on the complex issue of which family members of EEA nationals qualify for the rights to enter and reside in a host member state with the EEA national. It also indicates that the scope is much broader than that currently being applied in this State.

Our own experience shows that the there is a lack of consistent approach from the Department of Justice in assessing and interpreting individual cases in respect of the Regulations and the Directive, particularly regarding the scope of inclusion with the various categories of family members.   However, it must be accepted that it is a very complex area of EU Treaty Rights law, and the Moneke judgement highlights the varying interpretations by the UK courts also.

To add to the complexities, we have noted that there are a number of discrepancies between the Regulations and the Directive 2004/38. For example, the Regulations categorise family members into two groups; ‘qualifying family members’ and 'permitted family members'. These categories can be equated to those family members covered by Article 2(2) of the Directive and the ‘other family members' as covered by Article 3(2) of the Directive. While the Directive indicates that the host member state “shall" facilitate entry and residence rights in respect of both categories of family members, the Regulations distinguish between the two categories in this regard.  The Regulations direct that the State  “shall” allow a 'qualifying family member' to remain, while the State “may” allow a 'permitted family member' to remain.

Furthermore, the Directive includes partners of an EEA citizen in both Article 2 (2)(b) and  Article 3 (2)(b), while the Regulations categorize partners as a permitted family member only. Thus, pursuant to the Regulations, a partnership must exist in the country from which the non EEA national have come from.

A basic principle of EU law, called Direct Effect, means that in the event of a discrepancy between an EU Law instrument and a national instrument transposing the EU law, an individual may rely directly on the EU law instrument when the rights it creates are sufficiently clear.  Directive 2004/38 has been held to be directly effective in a previous case taken by this office - Gogolova & Ors -v- MJELR, [2008] IEHC 131 (2008). On the basis of this principle, we can rely directly on the rights enunciated in the Directive, as opposed to the Directive.

It is also note worthy that there is a preliminary reference pending with the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) specifically on this issue. We are keeping an eye out for this case and will of course keep you updated!

Brophy Solicitors

06.09.11