ANNUAL REVIEW OF IMMIGRATION IN IRELAND – 2014

The Irish Immigration Blog

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

The Irish Immigration Blog

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 

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

Brophy Solicitors

Recent Developments in Immigration

Updates from the Minister for Justice and Equality

On the 16th September 2014, Minister Fitzgerald announced new plans to increase the number of civilians carrying out key immigration functions in border management and registration roles. These jobs are currently within the purview of An Garda Siochana but as part of the Minister’s push to get more Gardai out on the streets, these roles are expected to be undertaken by an additional 80 civilian staff. The new programme will see civilians carrying out checks at both Dublin Airport terminals, as well as the transfer of the immigration permission registration function from An Garda Siochana to the Irish Naturalisation and Immigration Service of the Department of Justice and Equality (INIS). The Minister noted that the Gardai “will continue to provide core policing functions at the Airport and support the civilian staff as appropriate”. The full text of the Minister’s press release can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20major%20immigration%20civilianisation%20initiative>

On the 2nd September 2014, the Minister announced major reforms of the student immigration and international education sector. This move comes in the wake of a number of private college closures this year. The reforms aim to protect the interests of genuine students, while reducing instances whereby the immigration system can be abused. A recent policy statement sets out three primary pillars of reform: only accredited programmes will be in a position to enrol international students, inspection will be increased to ensure education and immigration standards are maintained, and the non-EEA student work concession will be altered to mitigate abuse. In the course of her statement, Minister Fitzgerald also warned those students affected by college closures earlier in 2014 to regularise their status in the State and ensure they were abiding by current immigration laws. The full text of the Minister’s press release, along with links to the policy statement of the Task Force, can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Ministers%20O%E2%80%99Sullivan%20and%20Fitzgerald%20launch%20major%20reform%20of%20student%20immigration%20and%20the%20international%20education%20sector>

Proposed reforms of Direct Provision Centres

Following increased media reportage into conditions in the State’s Direct Provision centres, in mid-August the Minister for Justice announced that a working group was to be established in the coming month to review the current system. The main issues outlined by the Minister include welfare payments, third-level education access, and support for children. Although Minister Fitzgerald has promised a more efficient application process would be in place by midway through 2015, she also ruled out the possibility of an absolute extension of the right to work to asylum seekers, citing the country’s unemployment issues as cause. While the establishment of a working group has been praised as a positive development by UN agencies, in more recent days that Minister has warned against “unrealistic expectations” in terms of reform. At present some 4,330 adults and children are being housed in Direct Provision centres around the country. Pressure is mounting on the Government to improve living standards, with recent weeks seeing asylum seekers protesting the system and calling for an end to Direct Provision entirely. Full articles on the above can be found at: The Irish Times “Government to review conditions for asylum seekers” 12th August 2014 <http://www.irishtimes.com/news/social-affairs/government-to-review-conditions-for-asylum-seekers-1.1894079> The Irish Times “Minister warns against unrealistic expectations on direct provison” 25th September 2014 <http://www.irishtimes.com/news/politics/oireachtas/minister-warns-against-unrealistic-expectations-on-direct-provision-1.1940425> The Irish Times “Asylum seekers mount protest at Cork direct provision centre” 15th September 2014 <http://www.irishtimes.com/news/ireland/irish-news/asylum-seekers-mount-protest-at-cork-direct-provision-centre-1.1929294>

Immigration, Residence and Protection Bill 2010

As part of her pledge to speed up the asylum process in the coming year, Minister Fitzgerald has committed to the introduction of a Single Procedure Mechanism, as distinct from the provisions of the currently dormant Immigration, Residence and Protection Bill. The Single Procedure Mechanism would allow claims for asylum and subsidiary protection to be made simultaneously. At present, claimants must first seek asylum, regardless of whether they meet the stringent criteria for refugee status. This procedure could theoretically save claimants years of waiting, and has been campaigned for by numerous organisations including the Irish Refugee Council and NASC. Publications and press releases on the above can be found at: “Press release: NASC welcomes renewed government commitment to reform of direct provision” 12 August 2014 <http://www.nascireland.org/latest-news/press-release-nasc-welcomes-renewed-government-commitment-reform-direct-provision/> “Roadmap for Asylum Reform” < http://irc.fusio.net/wp-content/uploads/2011/08/Roadmap-for-Asylum-Reform2.pdf> 


Brophy Solicitors

APPLICATIONS FOR DE FACTO PERMISSION IN IRELAND

Since 21st March 2014, INIS have declined to accept applications for De Facto Partnership Immigration Permission in circumstances where the Applicant is present in the State on a C Visit Visa or on foot of the Irish Short Stay Visa Waiver Programme. INIS further clarify on their website that they will not accept applications from persons who are unlawfully present in the State and/or are in the asylum/protection streams at the time of making the de facto application. 

We have several clients who submitted applications while they were lawfully present in the State but since their applications were submitted, their permission has expired or lapsed. We therefore recently sought clarification from INIS as to whether such applications will be processed, despite the current position of the applicant as someone not technically lawfully present in the State. 

INIS have now clarified that applications for a De Facto Relationship Immigration Permission received from non EEA nationals resident in the State who were legally present in the State at the time of application will continue to have their applications processed even in instances where they allow their existing registration or immigration permission to expire. 

In addition, INIS provided important clarification on the position of non visa required nationals. INIS confirmed that applications from non visa required nationals will be accepted provided that on the date the application is received the person concerned has a landing stamp endorsed on their passport permitting lawful entry to the State which is usually afforded for up to 90 days under visitor conditions. 

These changes and our own experience of dealing with many of these applications confirm an increasingly restrictive approach of INIS to De Facto applications. It is our own position that cases must be considered and determined on a case by case basis and absolute restrictions on certain individuals making the application, for example those in the asylum or protection streams, are legally questionable.

Brophy Solicitors

NEW VISA SCHEME FOR THE COMMON TRAVEL AREA

On the 16th of June 2014, the Minister for Justice and Equality, Francis Fitzgerald, in conjunction with her British counterpart, the UK Home Secretary Theresa May, announced the introduction of a new British Irish Visa Scheme. This joint initiative between the INIS and UK Home Office will allow holders of a single visa to travel free throughout the Common Travel Area (CTA) of Ireland, Northern Ireland and the UK, which has operated between our countries since 1922. The scheme will commence in the autumn, initially being available to Chinese and Indian nationals. 

Under the current system, for a substantial number of foreign tourists and business people wishing to visit both the UK and Ireland, it is necessary to acquire separate visas for each country and, even more inconvenient, where they are returning to their original destination, a re-entry visa must be sought. The new scheme eliminates this barrier by operating in a reciprocal manner, allowing Chinese or Indian nationals, holding a single short-stay visa from the country of first entry within the CTA, to freely travel between Ireland, Northern Ireland and the UK without the necessity of extra visas. For example, a person doing business in London may travel on the same visa, that allowed entry into the UK, to Dublin. 

This ‘historic development’ and cooperation between he UK and Irish governments aims to significantly increase the number of tourists and business people travelling to both countries and in turn, positively impact the economy while still ensuring the necessary security measures are adhered to. In a press release announcing the scheme, Minister Fitzgerald stated that “the British Irish Visa Scheme will enable both countries’ immigration systems to work in tandem to promote and facilitate legitimate tourism and business travel to Ireland and the UK while also strengthening the external borders of the Common Travel Area”. 

While announcing the scheme in London, UK Home secretary Theresa May outlined the benefits of such schemes and the advantages of continued cooperation between the Irish and UK governments, “Joint initiatives such as this will help to attract more Chinese and Indian visitors to both the UK and Ireland, while also ensuring the robust management of our borders. We look forward to on-going work with Ireland towards our shared objectives of promoting growth and preventing the abuse of our immigration systems.”

The new scheme will replace the current Short-Stay Visa Wavier Programme which allows nationals of 18 different countries who are visiting the UK to enter Ireland on their UK visa. Since its introduction in July of 2011, records show that the number of tourists from these countries grew by a staggering 68%. This demonstrates the potential success of the new scheme and the prosperity and growth it is expected to bring. 

The press release announcing the scheme can be viewed here:

http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20launch%20of%20joint%20visa%20initiative%20between%20Ireland%20and%20the%20United%20Kingdom

Brophy Solicitors

FAMILY REUNIFICATION OF DEPENDENT PARENTS

Recently, we have been granted leave on a number of High Court Judicial Review proceedings against the Minister for Justice and Equality for failure to properly assess applications for family reunification for dependent parents. These cases have involved applicants who are Irish citizens or possess permanent residence in Ireland, and who have Irish citizen children, and have demonstrated the necessary financial means to support their parents so as not to place financial burden on the state. They have also demonstrated that their parents are in fact dependent on them financially, socially and emotionally, many of them having severe medical conditions and health problems, with no viable options for care and support in their home countries. In one particular case, medical evidence was provided confirming that one of the applicant’s parents could not to undertake long haul flights and this information was not considered.

The main issue that has arisen is the Ministers reliance on the INIS’s Policy Document on Non-EEA Family reunification. This document places rigorous hurdles on applicants stating that a “Highly restrictive approach should be taken”, citing the states inability to take on the potential financial liability of elderly dependent parents.

The financial thresholds for a sponsor of one dependent parent is a requirement to evidence earnings of €60,000 gross for the three years preceding the application, and 75,000 gross for inviting two parents.

Whilst our clients have good earnings, and demonstrated a strong ability to financially support their parents, they were unable to meet the high level of finances required.

No consideration was carried out that our clients sought only to acquire a Stamp 0 permission for their dependant parents - it is an express condition of residence that the applicant is not entitled to claim any state benefit.

Disregard was paid to the applicants rights as a family afforded by Article 41 of the constitution, section3 of the European Convention on Human Rights, in particular Article 8, and European Union law. In refusing the applications, the minister failed to asses these protections, stating that the applicants’ rights under Article 8 of the European Convention on Human Rights would be fully considered if, and when, the deportation process is initiated against the second and third named applicants pursuant to section 3 of the Immigration Act 1999. We submit that this failure to fully weigh and assess the applicants rights render these decisions unlawful.

We would also highlight that the INIS policy document is not legally binding, and unfettered reliance may ultimately be unlawful due to its failure to recognise and adequately vindicate the safeguards and protections afforded to permanent residents rights of the family.

 

Karen Berkeley

Brophy Solicitors

LONG TERM RESIDENCY FOR RETIRED PERSONS OF INDEPENDENT MEANS

We are currently advising several clients on applications for permission to reside in the State as retired persons of independent means. This specific situation is relevant to a non-EEA person, who does not seek recourse to employment, self-employment or public funds, but merely wishes to reside in the state, supporting themselves through independent means, for example income generated through rented properties, investments etc.

We recently contacted the Irish Naturalisation and Immigration Service (INIS) to establish if a specific application procedure applies here and what criteria must be satisfied. We referred to the INIS website that sets out the various forms of stamps and includes a retired person of independent means as covered by Stamp 3 permission.

We received a response from INIS this week that states that the appropriate stamp is in fact a Stamp 0 and that their website will shortly be updated to reflect the position. INIS stated that they do not have a distinct category of retirees for immigration purposes. INIS indicated that permission would only be granted on the express understanding that the applicant is not entitled to any State benefit and on the basis of full documentary evidence to confirm they will not become a financial burden on the State. The primary requirements were stated to be: financial self-sufficiency, comprehensive medical insurance, and good character. They clarified that there is no application form. They also clarified that it is open to non visa nationals to make an application from outside the State.

It is clear therefore that in order to attain stamp 0 in this capacity, an applicant must provide extensive documentary evidence, primarily substantiating their financial self-sufficiency, including details of all income and expenditure. It is necessary to have comprehensive medical insure, that INIS stated must be equivalent to Plan D VHI, HealthPlus Premium (http://www.vhi.ie/pdf/products/TOBHPpremium.pdf). The applicant must also be of good character and be able to provide police references from every country they have resided in during the twelve months prior to application.

If the application is successful residence will be granted for a maximum of twelve months, after which a renewal application must be submitted.

INIS stated in their response that this is to be regarded as a temporary status only. It is important to note however that Stamp 0 is not amongst the express exclusions for eligibility for citizenship by naturalisation and therefore any period spent on Stamp 0 should constitute reckonable residency. See our previous post that specifically addresses this point.

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
 

INIS ISSUES NOTICE REGARDING CESSATION OF REGISTRATION FOR STUDENTS LINKED TO CERTAIN COLLEGES

A new notice on the INIS website indicates as follows:

“Following on from serious allegations regarding the practices of some Colleges which offer English language education to non-EEA national students, INIS and the GNIB have suspended the issuing of visas and residence permissions to non-EEA nationals seeking to enroll as new students with the following institutions.

• Eden College

• National Media College (formerly New Media College)

• Millennium College

• Business & Computer Training Institute

This suspension is pending further inquiries into the allegations of irregularities and further action may follow.”

Since 1 January 2011 a ‘New Immigration Regime for Full Time Non-EEA students was introduced by the Irish Naturalization and Immigration Service to set out new rules regarding studying in Ireland for non-EEA students. The guidelines require that Non EEA students studying language courses can stay in Ireland up to three years if they are studying a minimum of 15 hours a week, and have access to 3,000 in addition to course fees and health insurance. They are also required to evidence 80% attendance in order to obtain a renewal of their residence permission. Guidelines for the colleges were also provided at that time.

The notice on the INIS website follow reports in some of the Irish newspapers that some colleges were fabricating students attendances in order to facilitate the issuing of their student residence permissions.

The Irish Independent today states that Mr Rezaul Haque, who is the chief executive officer of Millennium College, indicated that his college was not guilty of any practices that would warrant suspension of the issuing of visas and residence permissions and he was "confident that everything will be sorted".

http://www.independent.ie/lifestyle/education/immigration-authorities-launch-visa-crackdown-on-schools-30190044.html

We would highlight to students who are attending the named colleges that the above notice applies only to those seeking to enroll as new students, and not those who are already enrolled in such courses. We trust that those students already enrolled and attending courses in the named colleges will be permitted to complete their course under the normal student conditions.

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

STEP FORWARD FOR THE RIGHTS OF TRANSGENDER PERSONS

We are delighted to confirm that we have won a battle with the Department of Justice to fully recognize our client’s change of gender. We had requested that the Minister for Justice and the Garda National Immigration Bureau to amend the Register of Non Nationals to reflect her gender change from male to female. The amendment of identity documents to reflect change of gender was highlighted by our client’s medical team as being a significant part of her change of gender process. However, both the Garda National Immigration Bureau and the Department of Justice initially refused to do so, each indicating that it was not within their remit. 

The Register of Non-Nationals is under the direction of the Minister for Justice and Equality (section 9(1) of the Immigration Act 2004), and it was the Garda National Immigration Bureau’s position that it required written authorization from the Minister in order to register Ms. Loh as female. We submitted to the Department that there is nothing in the section which prohibits the amendment of register to reflect her change of gender. We submitted that the Irish Naturalisation and Immigration Service, and the Garda National Immigration Bureau, were in fact obliged by section 3 of the European Convention on Human Rights Act 2003 to carry out their functions in a manner that is compatible with the European Convention on Human Rights, which necessitated the amendment. 

Ultimately, High Court proceedings were avoided, when advices from the Attorney General resulted in the Department granting our client the permission she required to re register as a female. She was subsequently provided with a GNIB registration certificate and subsequently a travel document reflecting female gender.

The acceptance and recognition of one’s gender is a fundamental right, and we were very proud to have helped our client to achieve her personal goal, while also making a significant step forward for the rights of transgender persons in Ireland. We wish to congratulate her on having the courage to fight this point of public importance to success. 

However, the rights of transgender persons in Ireland remain below accepted international standards. In October 2007, Lydia Foy’s ten year legal battle for a birth certificate recognizing her true gender ended with a favourable High Court decision. The High Court ruled the State in violation of the European Convention on Human Rights Act 2003 and required that it recognize transgender persons in their acquired and true gender. However, despite this progressive victory for the transgender community, today, Ireland is the only EU state without a legal mechanism for recognition of transgender persons. While discussions for a Gender Recognition Bill have begun, several of its proposals have already been deemed unlawful in countries such as Germany and Austria, most notably the requirement of married transgender people to divorce their partners before applying for gender recognition. Thus, while the Gender Recognition Bill may perhaps a step in the right direction, Ireland still appears to be well behind its EU counterparts with respect to recognition of transgender persons. Nearly seven years past the High Court ruling on the issue, the State has failed to respond, leaving its transgender citizens on the fringe, and opening itself to heavy criticism from the international human rights community.

Karen Berkeley 

Brophy Solicitors

STAMP 0 UPDATE

I refer to our blog posts that referred to confusion around the introduction of Stamp 0. As previously noted, we wrote to the Department in order to seek express clarification in this regard and I am happy to confirm we have received a helpful response.

The letter notes that Stamp 0 has no provision in the Irish Nationality and Citizenship Act 1956 (as amended). However, this also means that the permission is not amongst the express exclusions for eligibility for citizenship by naturalisation and is thus ‘not excluded from reckonability’. It is further stated in the letter that naturalisation is a discretionary determination, which is why INIS has sought to ‘dampen expectations that Stamp 0 would lead to citizenship, and it is being granted on the basis that naturalisation would not be the probable outcome’. 

However, as with any resident who is granted reckonable permission, anyone within the state on stamp 0 permission is entitled to apply and have their case decided by the Minister on their own merits, in a manner identical to that of all such applications. 

Our arguments in respect of the confusion and lack of clarification on the INIS website in this regard have been accepted and furthermore assurance has been provided that this issue will be addressed shortly. 

Therefore, it has been established that Stamp 0 is accountable in respect of reckonable residency, and all naturalisation applications on the basis of this permission will be determined within the Minister’s discretion, as is the standard procedure with all naturalisation applications.

Naomi Pollock

Brophy Solicitors

SUMMARY OF THE INIS POLICY DOCUMENT ON NON-EEA FAMILY REUNIFICATION (Published December 2013)

Addressing the need for more comprehensive and transparent guidelines to assist both applicants and decision makers in the area of family reunification, the Policy Document on Non-EEA Family Reunification, released by the Department of Justice in December of 2013, aims to make clear how the State intends to deal with family reunification cases. The document does not create or acknowledge any new rights of family reunification, however it does present a series of proposals aimed at improving the family reunification process. Here we have summarized some of the more significant proposals as well as the current policies outlined in the document with respect to application processing, the qualifications of a sponsor, dependency requirements, eligibility requirements for spouse, civil partner or de facto partner, elderly dependent parents, and applications for parental migration on the basis of Irish citizen children.

Proposed Changes to Family Reunification Application Processing

The document proposes administrative changes in consolidating the processing of family reunification applications and appeals within the INIS. 

The document proposes the establishment of a preclearance facility for family reunification applications, requiring all applications to be submitted to the facility from overseas rather than upon arrival in Ireland. This would involve a standard application form and fee and the establishment of a central specialist family settlement unit where all applications would be referred. This standardized system would place visa required and non-visa required applicants on a level playing field and work to ensure transparent and consistent information gathering for both officials and applicants. It would also aim to address issues arising from the lack of certainty for applicants applying from within the country who only have ninety days to complete the process. Further, the document states the intention to discuss the addition of language and cultural knowledge requirements for applicants at all levels of immigration.

Second, the document proposes the establishment of a statutory appeals system through provisions in the Immigration Residence and Protection Bill. Once in place, applications for family reunification will be incorporated.

Lastly, the document proposes to provide specific immigration permission for children under the age of 16 to be registered on an administrative basis (not currently allowable under the 2004 Immigration Act) which will allow them to establish personal resident history at an earlier date.

Qualifications of a Sponsor 

Currently, those eligible to be sponsors in the family reunification process include a:

• An Irish citizen residing or intending to reside in Ireland
• Lawfully resident foreign national as an Employment Permit Holder 
• Lawfully resident foreign national with an immigration Stamp 4 , including Long Term residents 
• If Stamp 4 holder is a refugee or a person granted subsidiary protection, this also applies 
• Lawfully resident foreign national with an immigration Stamp 5
• Researcher under a hosting agreement
• PhD student studying for a doctorate accredited in Ireland
• Minister of Religion with an immigration Stamp 3

With respect to these qualifications, it is proposed that sponsors will additionally have to achieve minimum levels of earnings prior to being eligible to sponsor a family member. These will be set at a cumulative gross figure of €40,000 over three years where the sponsor is an Irish citizen and a higher level where the sponsor is a non-EEA national. Social welfare payments will not be reckonable as earnings for this purpose. This requirement would also increase where an application is made for a dependent elderly parent.

Further, the document proposes to adopt a streamlined approach to residency requirements for non-EEA sponsors, with highly skilled workers, entrepreneurs, researchers and others able to apply immediately for family reunification. A 2 year waiting time is applied in cases of certain other categories.

Dependency Requirements

As defined and further clarified by this policy document, “dependency” means that the family member is (i) supported financially by the sponsor on a continuous basis and (ii) that there is evidence of social dependency between the two parties. The degree of dependency, both financial and otherwise, must render independent living at a subsistence level by the family member in their country impossible if that financial and social support is not maintained. This relationship must also be proven to be pre-existing and sustained prior to creating and submitting an application for family reunification.

Eligibility Requirements for Spouse, Civil Partner or De Facto Partner

Any eligible spouse, civil partner, or de facto partner must be at least 18 years of age. The relationship must be monogamous, freely entered into by both parties, and lawfully conducted and recognized under Irish law. The couple must also demonstrate a clear commitment that they will live together following the outcome of the application as circumstances permit.

For marriages and civil partnerships there is no minimum duration requirement. De facto partnerships are required to prove the existence of a relationship akin to marriage, including cohabitation two years prior to submission of the application.

Entry for the purposes of marriage or civil partnership may also be permitted given a 6 month provision, so long as it can be proven that the union is not for convenience. Similarly, proxy marriages may also be recognized under the same policy if it is demonstrated that the marriage is genuine and freely entered into by both parties and the couple can show that they have met each other in person.

Elderly Dependent Parents

Because the potential financial liability for the State of providing medical treatment to accepted elderly dependent relatives is considerable, the document states “emigration, including that by Irish people, is undertaken with no legitimate expectation of ever being joined by parents” and as such, all cases are approached highly restrictively. 

To address this concern, the document proposes that the sponsor of an elderly dependent relative be required to have earned in Ireland each of the three years preceding the application an income after tax and deductions of no less than €60,000 in the case of one parent, and € 75,000 in the case of two parents. The requirements for dependency outlined previously must also be met in all cases involving elderly dependent relatives. As such, the sponsor must also prove that there is absolutely no viable alternative including the availability of other family members, financial resources, and the movement of the sponsor from Ireland to care for the applicant.

If the application is approved, the document further proposes that the applicant be covered by private medical insurance at above the level of VH plan D or equivalent. The sponsor must also sign a legal undertaking to bear personal and complete financial responsibility for the elderly dependent relative and make detailed provision for their accommodation. Permission of this kind would be regarded as temporary and renewable on an annual basis providing all conditions are met and the accepted applicant will be given Stamp 0 (not reckonable for Long Term residence or Naturalisation).

Irish Citizen Children-Applications for Parental Migration

In cases where parents seek residence in Ireland on the basis of their citizen (minor) child, applications are considered with respect to the contribution the parent’s presence would contribute to the child’s enjoyment of its rights as a citizen and parents cannot claim personal rights of residence merely by their parentage of a minor Irish citizen child. This addressed, the document states that each application is viewed individually, taking into account each family’s specific situation. However, it also states that a series of linked applications, seeking to bring to Ireland both parents and all siblings on the basis of a single minor citizen child would seem to go beyond what is reasonable. This is seen as particularly relevant if the State would be required to provide for the family financially.

Karen Berkeley 

Brophy Solicitors

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

IMPLEMENTATION OF THE INITIAL STAGE OF THE NEW SUBSIDIARY PROTECTION PROCEDURES

As noted recently in our blog, the guidelines for the new subsidiary protection application have now been published on INIS website. 

Our clients have now received standard forms from ORAC, who are now responsible for these applications, requesting that they confirm their intention to either remain within the procedure or opt out. As previously noted in our blog, many clients feel that the new procedure will create further delays as it involves another interviewing procedure similar to that carried out at the stage of their asylum application. It is possible to refuse to attend further interviews; however it is also possible for ORAC to insist on attendance in order for the application to be processed.

We must emphasise that although on first look remaining within the subsidiary protection process is potentially unappealing due to possible delay, the new policy has been implemented in an attempt to improve the procedure. Until now, the number of subsidiary applications granted in Ireland has been comparatively low in relation to our European counterparts. We hope that the new procedure may see improvements in this regard. Applicants cannot assume that upon withdrawing their subsidiary protection application that a leave to remain application which has been pending for some time will be considered favourably. 

Therefore, we advise that if you wish to withdraw your application, please consider the implications of doing so extremely carefully. 

If you wish to review further information regarding the procedure, please see our recent blog posts. 

Naomi Pollock

Brophy Solicitors

NEW SUBSIDIARY PROTECTION STATUTORY INSTRUMENT HAS BEEN PUBLISHED

The publication of a new subsidiary protection statutory instrument was stated this week on the INIS website.

The information notice appearing on the website informs:

"With effect from 14 November 2013, responsibility for processing all existing and future subsidiary protection applications has transferred from Minister for Justice & Equality to the Office of the Refugee Applications Commissioner (ORAC) under Statutory Instrument No 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013 (attached below) 

SI 426 of 2013 (PDF - 1134KB)

A detailed Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the regulations.

SP Information Note - 13th Nov 2013 (PDF - 48KB)"

Similarly ORAC's website also states:

"14 November 2013 - Responsibility for processing all existing and future subsidiary protection applications transfers to the Office of the Refugee Applications Commissioner under S.I. 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013. SI 426 of 2013”

“14 November 2013 - Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the Regulations. An ORAC Information Note on the 2013 Regulations will be available in a number of languages shortly on the ORAC website. Subsidiary Protection Information Note”

The new regulations come into effect today and notice of the making of the S.I. will be published in “Iris Oifigiúil” on Friday 15th November, 2013.

The Department of Justice has issued the following press release:

http://justice.ie/en/JELR/Pages/PR13000386

UNHCR has also released a statement today in relation to the new procedures:

http://www.unhcr.ie/news/irish-story/unhcr-welcomes-the-establishment-of-a-new-subsidiary-protection-determinati

Naomi Pollock

Brophy Solicitors

DE FACTO RELATIONSHIP VISAS

The permission is conditional on the basis of the relationship.

Non – EEA nationals who are in de facto relationships must have permission to remain in the State as follows:

• A non EEA national whose partner is an Irish national must provide proof of a durable relationship of at least 2 years. If the non EEA national is granted permission to remain they are not required to have a work permit.
• A non EEA national whose partner is an EU national can apply for a residence card if proof of a durable relationship of at least two years. If permission is granted, they are also not required to have a work permit.
• A non EEA national whose partner is also a non EEA national must provide evidence of a durable relationship of at least 4 years. They are required to have an employment permit to work.

The INIS guidelines note that for immigration purposes a person may be considered the De Facto Partner, opposite or same sex, of another person if:

• They have a mutual commitment to a shared life to the exclusion of all others akin to marriage or civil partnership in practice though not in law
• The relationship between them is genuine and continuing
• They live together or do not live separately and apart on a permanent basis
• They are not related by family.

It is stressed on the INIS website to assess the durability of a relationship, it is necessary for the couple to show dated documentary evidence of cohabitation for at least two full years immediately prior to the application. If the couple are not residing together at time of application, compelling reasons only will be considered. Evidence must still be provided of the previous two years, and whilst humanitarian reasons will be taken into consideration there is no guarantee the application will be granted. Mere visits to each over the two year period do not satisfy the criteria. It is vital that the couple intend to reside together permanently, and to reside in Ireland. 

The following link provides access to the INIS detailed list of guidelines: 

http://www.inis.gov.ie/en/INIS/Pages/De%20Facto%20Relationships%20with%20an%20Irish%20National%20or%20Irish%20Resident%20-%20Guidelines%20for%20applicants

RECOGNITION OF STATELESSNESS IN IRELAND

In Ireland, there is no procedure for the determination and recognition of a person’s status as stateless, despite the fact that Ireland is a party to both the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

The UNHCR Irish office has highlighted this failing in the Irish Immigration system, and it is stated as follows on their website

“UNHCR has noted that, in Ireland there is currently no discrete procedure in which a stateless person can have their status considered. The absence of identification impacts on a stateless persons’ ability to get, for instance, travel documents, and to make representations to the Minister to waive the naturalization requirements as specified in Section 16 (g) of the Irish Nationality and Citizenship Act 1956 (as amended).

UNHCR is currently working with the Irish authorities to see how statelessness identification procedures might be introduced in Ireland.”

It is surprising that the Irish State appears to recognize statelessness in one very narrow respect – applications for Naturalization. Section 16 (g) of the Nationality and Citizenship Act 1956 (as amended) provides the Minister for Justice and Equality, the discretion to waive the normal conditions for naturalization for both refugees and Stateless persons. It is strange that stateless persons can apply for such a benefit where they cannot officially apply to the State to have their stateless status recognized. 

It is also surprising that to the Travel Document Section of the INIS website indicates the Minister’s policy in issuing travel documents to stateless persons as follows;

“The State (Irish Naturalisation & Immigration Service) is obliged to issue travel documents to persons granted protection in accordance with:

• The 1951 UN Convention relating to the Status of Refugees (Article 28) and The Refugee Act, 1996 (Article 4)
• The 1954 Convention relating to the Status of Stateless Persons (Article 28)
• The European Communities (Eligibility for Protection) Regulations 2006 (SI 518 of 2006)”

However, it is impossible to obtain such a stateless Travel Document in Ireland, because no person can currently obtain recognition of their stateless status. 

We have recently issued High Court proceedings seeking a declaration that the Minister’s failure to have in place a transparent and effective system by which our client can apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constitutes a breach of the our client’s right to the effective exercise of his legal rights under European Union law, the Constitution and the European Convention on Human Rights Act 2003. 

Until the Minster has set up a fair process for the determination and recognition of stateless persons, we suggest that all stateless persons resident in the State should write to the Minister for Justice, to make the following requests ;

1. Request the Minister to acknowledge your status as a stateless person by way of a Certificate of Statelessness
2. Request that the Minister provide you with a Travel Document pursuant to the 1954 Convention relating to the Status of Stateless Persons
3. Request the Minister to explain why no mechanism has been put in place to acknowledge your status as stateless, despite Ireland being a party to the Conventions on Statelessness 
4. Request the Minister to explain if and when such a mechanism will be put in place.

Brophy Solicitors

Information Notice for Clients about Subsidiary Protection Applications

On the 23rd of January 2013 Mr Justice Hogan delivered judgment in the case of MM v Minister for Justice Equality and Law Reform in the High Court. This judgment has had a significant impact on applications for subsidiary protection in Ireland. 

Applicants who are unsuccessful in their asylum claim can make a subsequent application for subsidiary protection to the Minister for Justice and Equality. In MM, it was found that the Minister relied entirely on the findings made by the Refugee Appeals Tribunal at the asylum application stage in coming to the decision that the applicant would be refused subsidiary protection. Mr Justice Hogan held that the Minister failed to afford the applicant a fair hearing because he made no separate and independent adjudication. He noted that his decision would have far-reaching consequences for the current subsidiary protection programme.

Brophy Solicitors currently have a number of clients who are applying for subsidiary protection. Some clients have been waiting in direct provision centres for up to five years awaiting a decision on their status and they are growing increasingly anxious about the result of their application. The decision in MM has had the impact of delaying decisions for applicants even further as the Irish Naturalisation and Immigration Service (INIS) have to devise a new system for processing applications in line with the judgment. We are also aware that the High Court has granted leave to issue judicial review proceedings in cases with already lengthy delays. 

In correspondence with Brophy Solicitors, the Department has requested that our clients ‘bear with [them]’ until ‘[they have] completed the work necessary toward putting the new procedures in place.’ They gave an assurance that all of our clients who have made applications remain on file and will be dealt with as speedily as possible once the new system is in place. This is worrying for some of our clients who experience delays of up to 5 years. 

The Minister spoke about the matter in response to a parliamentary question on the 11th of June 2013. He said that the MM case was under appeal to the Supreme Court but that INIS was working on devising a system for applications in the interim. He also advised that he is hoping to re-publish the Immigration, Residence and Protection Bill under which ‘it is envisaged that applications for asylum, subsidiary protection and ‘leave to remain’ will be dealt with as a single procedure.’ He advised that these legislative provisions are being given priority attention and that once they are in place, applications will be dealt with in a ‘timely manner.’ 

Many of our clients have been give the option to withdraw their Subsidiary Protection so that INIS can commence a speedy determination of their pending Leave to Remain applications. 

Depending on the Applicant’s circumstances, this might be a good option and many clients who are waiting for up to five years or more want to avail of the quickest route in obtaining a decision. Nonetheless a positive outcome in every case is not indicated by INIS and applicants should note that a quick decision does not necessarily mean a positive decision. The difference between the two applications and the impact of a decision to withdraw a Subsidiary Protection case must be carefully explained to each client who must make an informed decision. 

Katie O'Leary and Sarah Henry

Brophy Solicitors