DELAYS WITH STAMP 2 RENEWAL APPLICATIONS

We have been dealing with several queries from students who are attempting to resolve their immigration matters through correspondence with the Student Review Group, but are experiencing significant delays in receiving a response. 

Students are generally unable to renew their permission with GNIB and are referred to Student Review Group at the Irish Naturalisation and Immigration Service (INIS) when they have a significant gap in their immigration permission or if there is an issue with their attendance. A specific Student Taskforce has been set up with a dedicated information webpage for the large number of students affected by the recent college closures. Details can be found here: http://www.studenttaskforce.ie/

Our own experience is that students are facing excessive delays in having applications to the Student Review Group (SRG) processed. In one such case we are dealing with, the student was required by GNIB to apply to Student Review Group after his college incorrectly reported his attendance to the GNIB. He has now been waiting one year and nine months for a decision and has faced serious difficulties supporting himself financially during this period as he has been undocumented and without permission to work. We are now in correspondence with the SRG on his behalf trying to resolve the matter and have threatened to issue High Court proceedings if we do not receive a decision on his case in the next seven days. 

In such cases, it is important that students do not simply cease studying when their permission expires and while their applications are being processed by Student Review Group. The basis on which Stamp 2 is issued is after all study, and if the student is no longer fulfilling the conditions of their stay, it may be open to Student Review Group to refuse a renewal application, even if there is a long delay in them issuing that decision. Students will generally be required to show their continued good attendance at college together with evidence of in date private medical insurance. 

Rebecca Keatinge

Brophy Solicitors 

VISA APPLICATIONS FOR EU CITIZEN AND THEIR FAMILY MEMBERS EXPLAINED

The EU Directive governing the family reunification for EU citizens exercising their Free Movement Rights is Directive 2004/38/EC. This is separate from national law. On INIS, www.inis.gov.ie, there is a choice to make an application of being a family member of an EU citizen or otherwise under national law. EU citizens and their family members have a right under residence, under Article 6 of the Directive, for up to three months in the State without any conditions.

The form of visa to be issued is a single entry C visa. To be granted a visa under the Directive, the applicant must prove that they are either a i) a qualifying family member or ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

Qualifying Family Members include:

i) the spouse of the EU citizen

ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

Permitted Family Members include:
i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained. 

ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

The applicant must prove:

i) that there is an EU citizen from whom they can derive rights from under the Directive;

ii) the existence of the required relationship as either a qualifying or permitted family member;

iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

The proofs that are required are:

i) proof of identity (for example, valid passports for the applicant and the EU citizen);

 

ii) proof of the required relationship (e.g. a birth certificate or a marriage certificate);

iii) for a permitted family member, proof of dependency or membership of the household;

iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland at the time of arrival of the applicant family member (proof of travel to Ireland, for example).

The INIS website lists types of supporting documentary evidence. There is no need for additional proofs, such as evidence of employment or letter of invitation. 

Refusals can be made on the following grounds:

i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Member states are not obliged to recognise a polygamous marriage where this is not allowed in their national law, as is the case for Ireland, thus this time of marriage cannot be relied upon as proof of the family relationship. Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship. However, marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into. 

If refused, the applicant may, in addition to, or as an alternative to, exercising their right of appeal, submit a new visa application for consideration. Any such application will be considered separately from their application and will not affect their right to appeal.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications. 

If the visa is approved and the applicant wishes to reside in Ireland for more than three months, then they should make an application (when in the State) for a residence card (GNIB card) of a family member of an EU citizen to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

Ciara Dowd 

Brophy Solicitors
 

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 

Brophy Solicitors

NEW 2 YEAR EXTENSION FOR STUDENTS RESIDING HERE SINCE 2004

The Department of Justice & Equality has announced new arrangements for students who have been continuously resident in the State since before 1 January 2005 (i.e. the student must have received a GNIB card during or before 2004 and for each year thereafter). These new arrangements will allow eligible students to reside in Ireland for a further period of 2 years on specified conditions. In addition, at the conclusion of the two year probationary period those students will be eligible to apply for a more permanent status on condition that certain obligations have been fulfilled.

Any non-EEA national student who first registered their residence in Ireland as student on or before 31 December 2004 and who commenced their studies in Ireland on or before 31 December 2004 may apply for the special probationary extension.

Non-EEA Students who are no longer resident in the State will not be eligible to avail of this student probationary extension.

In order for such a student to be granted the extension they must have maintained their residence as a student from first registration until the date of application for the Student Probationary Extension. Any student not currently registered and with a significant gap in registration will not be eligible to apply for the extension.

Students must also furnish one P60 certificate that has been acquired within the previous three years.

The following residency conditions will apply to the probationary period –

·        The eligible student will not be required to be registered or enrolled in an academic course of study.

·        The eligible student will be permitted to work for a maximum period of 40 hours per week without being required to hold a work permit.

·        The eligible student will be required to maintain private medical insurance.

·        The eligible student will be required to reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.)

·        The eligible student will not be permitted to apply for reunification with family members who are resident outside the State.

·        The eligible student must be of good character and must demonstrate that they are law abiding.

At the conclusion of the two year probationary period the eligible students can apply for a Stamp 4 permission to reside in the State.

Brophy Solicitors welcomes these new arrangements and is available to assist potential applicants with any queries they may have regarding the scheme. 

Brophy Solicitors

24.08.12

STAMP 1 A – RECKONABLE OR NOT?

In the recent months, our office has received a substantial number of queries from clients who are ACCA trainee accountants and resident on Stamp 1 A status. The queries relate to whether their status is reckonable for the purposes of acquiring Irish citizenship by birth for their children, pursuant to the terms of the Irish Nationality and Citizenship Act 1956 (as amended by Section 4 of the Irish Nationality and Citizenship Act 2004). They also inquire as to whether their status is reckonable in respect of the Naturalization process, pursuant to of Section 14 of the Irish Nationality and Citizenship Act 1956.

The cases that have come to our attention include contradictory directions from GNIB, the Department of Justice and the Passport Office as to whether the applicant’s Stamp 1 A is reckonable or not. In a number of cases, the clients have received letters from GNIB indicating that their periods of Stamp 1 A are reckonable, while the Passport Office has regarded the same periods as not reckonable in respect of applications for passports for their children. 

Each of these clients who have been refused passport for their children have instructed that they are aware of trainee accountant colleagues on Stamp 1 A status who have been issued passports for their children in similar circumstances. According to one client’s instructions, such a passport was issued on this basis within the recent months. They are understandably very frustrated over such inconsistant policies in respect of elibibility for Irish citizenship by birth.

Stamp 1 A is the designated stamp for trainee accountant. It is described on the INIS website as follows; “This person is permitted to remain in Ireland for the purpose of full time training with a named body until a specified date. Other employment is not allowed.”

An Information leaflet titled “General Information on Irish Citizenship”, as posted on the INIS website, explains the entitlement to citizenship by birth as follows;

“A person born in the island of Ireland after 1 January 2005 is entitled to Irish citizenship only if, during the four year period immediately preceding the person’s birth, one of the parents has been resident* in the island of Ireland for a period of not less than three years and neither parent was entitled to diplomatic immunity in the State”

A note in respect of residency is added as follows;

“certain residence is not reckonable, including unlawful residence, residence granted for the purpose of study and period where there was a provisional permission to reside granted pending determination of an asylum application ”

Further difficulties arise in respect of Stamp 1 A status in the Naturalization process. It is not clear stated in the recent Departmental Guidelines of July 2010 whether a stamp 1 A is reckonable or not for the purposes of Naturalization/ Citizenship by birth. We have noted that the new Citizenship Application Form indicates that stamp 1 A is not reckonable. However, the new reckonable residence calculator on the INIS website indicates stamp 1 A is reckonable in the calculation.

It appears from some letters we have seen from the GNIB that the status of trainee accountants on stamp 1 A is reckonable. While in other letters issued from the GNIB the trainee accounts have been registered on stamp 1 permission, as opposed to stamp 1 A. Thus, their residence on stamp 1 is reckonable residence. Sometimes, it seems that the GNIB have used the stamp 1 and stamp 1 A interchangeably.

We have sought clarification from the Citizenship Section of the Department of Justice, and I have been informed in writing that stamp 1 A is not reckonable. However, when we rang the Citizenship Section in July last to seek clarification on the point and we were informed that stamp 1 A is “definitely” reckonable for the purposes of Naturalization. We asked that this point be confirmed, and we subsequently received a further telephone call to confirm that Stamp 1 A  was reckonable.

We have requested Citizenship Section to provide us with copies of the current and past Ministerial guidelines in respect of reckonable residence for the purposes of Irish Nationality and Citizenship Act 2004. They have not yet been provided to us.

We have today again requested from the Minster provide us with a clear statement as to the current Departmental policy in respect of this issue.

We submit that residency permission under stamp 1 A is designed for trainee accountants, as opposed to students, and therefore evidenced by a variation of the Stamp 1 (worker permission) as opposed to stamp 2 (student permission). Furthermore, the conditions of the ACCA qualification process necessitate that the trainee obtains work experience.We submit that it is certainly arguable that Stamp 1 A should be properly regarded as reckonable. However, most importantly, we would argue that it is unacceptable for such unclear and contradictory policies, directions and decisions to continue between the relevant bodies in respect of a matter as fundamental as the eligibility of Irish citizenship. 

Brophy Solicitors

25.8.11

SHAM MARRIAGES

WRONGFUL ARREST OVER SUSPECTED 'SHAM MARRIAGE'

The BBC reported that Northern Ireland police admit that sometimes, they get things wrong following the arrest of Ms. Yanan Sun who was just about to marry her Northern Irish fiancée in Derry.  Ms. Yanan Sun who is pregnant is understandably distraught.  Her fiancée has commented that an apology is not enough. 

This year we issued proceedings in a similar case and have first hand experience of the human side of these police blunders which cause great stress, embarrassment and anger for a couple about to wed.  A wrongful arrest for any person is a frightening and humiliating occurrence, let alone an arrest on a day that is supposed to be one of the happiest days of that person's life.  It is not acceptable for State authorities to act in this manner. 

Brophy Solicitors 
22.07.11