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

CASE SUMMARY: CA V REFUGEE APPEALS TRIBUNAL (2014) IEHC 504

On the 1st of October 2014, Barr J of the High Court directed that the decision of the Refugee Appeals Tribunal to refuse an asylum application to a Nigerian national be referred back to the Tribunal for a further decision before a different member of the Tribunal. The applicant in this case claimed that he was fearful of returning to his country on grounds of his sexuality. The High Court held that the Refugee Appeals Tribunal (RAT) fell short of its duty to give a clear, reasoned and rational decision for its refusal. 

Many aspects of the RAT decision were criticised by Budd J in this case. Budd J stated that the RAT did not take into account the country of origin information submitted by the applicant. The Tribunal had found that the applicant in this case was "unlikely to face persecution from State agents in Nigeria.” Budd J stated that this ran contrary to the information submitted by the applicant on his previous treatment in Nigeria that included beatings by police officers. Similarly, Budd J rejected the Tribunal’s finding that the applicant could relocate internally to the city of Lagos safely. The learned judge found that on the facts, such internal relocation was not a viable option for the applicant. The High Court instead found that there was strong evidence that homosexuals did not live openly in Lagos for fear of persecution. 

The Tribunal had stated that the applicant's reasons for not claiming asylum in the United Kingdom were not plausible. The Tribunal generally did not find the applicant’s story credible. Budd J however held that it is not sufficient to merely state that the applicant’s version of events was implausible; the decision of the RAT must be supported by reasons. 

The Tribunal had also stated that: "It is clear from the information provided by the applicant that he has not suffered any persecution for a Convention reason in Nigeria, nor is he likely to face persecution upon returning to his country of origin.” Budd J stated that this was not sustainable as the Tribunal failed to give adequate reasoning for this assertion. The learned judge also stated that there is no requirement on the applicant to prove that he is likely to suffer torture or inhumane or degrading treatment, rather the proof required is that he has a well-founded fear of torture or inhumane or degrading treatment. 

Budd J in the case granted leave to the applicant to seek certiorari of the decision of the Tribunal and he made an order quashing the decision of the Refugee Appeals Tribunal. Budd J directed that the case be referred back to the Tribunal for a further decision before a different member of the Tribunal.

Rebecca Keatinge

OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge

Brophy Solicitors 

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 

UPDATE ON FAMILY REUNIFICATION OF DEPENDENT PARENTS

We were recently successful in an application for Stamp 0 made for dependent parents of an Irish national. We have previously faced difficulties in a similar case and the current case gives some indication of what factors may persuade the Department to grant permission tone case over another. 

These are cases where Irish citizen children apply for permission to reside in the State for their dependent parents, who are non-EEA nationals, demonstrating that they have the necessary financial means to support their parents and that their parents will not place financial burden on the State. They must demonstrate that their parents are in fact dependent on them financially, socially and emotionally. In several cases we have dealt with, dependent parents have severe medical conditions and health problems, and no viable options for care and support in their home countries.

The Irish Naturalisation and Immigration Service (INIS) Policy Document on Non-EEA Family Reunification is applied by INIS when considering and determining these cases. The policy places rigorous financial threshold on applicants, requiring the sponsor of two dependent parents to evidence an income of €75,000 to support the application. 

In a previous case we have dealt with, an application made by a sponsor in a strong financial position was refused and one of the reasons cited in the refusal was the fact that the parents were in the State unlawfully. In that case, medical evidence had been provided confirming that one of the applicant’s parents could not to undertake long haul flights and hence remained in the State after their permission had expired. Nonetheless, the fact of their unlawful residence was held against them. That case is currently subject of High Court litigation. 

In our recent case that was successful, the parents were also in the State unlawfully, their permission having expired while the application was pending. Medical evidence was also provided showing that they were not fit to fly. However, what appears to have been the factor that distinguished the recent case was that the sponsor clearly evidenced the very strong financial position and substantial income and therefore clearly established that the sponsor would have absolutely no difficulty supporting the dependent parents in the State. We were able to make convincing submissions that there could be no reasonable prospect that the parents would become a financial burden on the State and it appears that the financial position may have been a decisive factor in ensuring the application was successful. 

It is also noteworthy that this application was processed in just over three months, which was relatively quick. The clients are obviously enormously relieved at the outcome. 

Rebecca Keatinge

Brophy Solicitors

EU TREATY RIGHTS AND APPLICATIONS FOR NATURALISATION

We have recently made several applications for naturalisation on behalf of applicants who satisfy the reckonable residency criteria on the basis of their EU Family residence card. In these cases, the applicants have been issued with EU Family residence cards and Stamp 4 permission for five years on the basis that they are a family member of a Union citizen who is exercising their Treaty rights in the State. 

Ordinarily, the applicant is the spouse of a Union citizen who is working in the State. Several of these applications have been made prior to the applicant attaining five years permission to remain from the date of their actual grant of Stamp 4 permission by the EU Treaty Rights Section. For various reasons, they have sought to make the application earlier. We have made the argument on their behalf that they enjoyed an entitlement to reside since their date of marriage to the Union citizen and that their reckonable residency should be calculated from the date of marriage. 

Until recently we had encountered no difficulties with this submission. However in the last two weeks, we have received refusals in two such cases. In both of these cases, the Citizenship Unit have explicitly stated that EU family permission to remain is taken from the date such permission is granted ie not from date of marriage. In both cases we have responded to the Citizenship Unit asking that they urgently review the refusals, making the strong submission that as the family member of an EU citizen who has exercised EU free movement and who has been economically active in the State, the applicant enjoyed a right to reside from the date of marriage pursuant to Article 7 of Directive 2004/38EC, (the Directive) the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) (the Regulations). Our argument is that such permission was not contingent or conditional on making any application to the Minister; it was an entitlement derived from EU law. 

We have not had this type of response until now and it remains to be seen how the Citizenship Unit will deal with such applications going forward. While our legal arguments appear sound, on a practical level these refusals may cause difficulties for applicants and anyone in this position is best advised to ensure they are in a position to make a permanent residency application or an application for retention to keep their permission in date and enable them to maintain their permission beyond the five year EU Family card. 

Rebecca Keatinge

Brophy Solicitors

DELAYS IN DECISION-MAKING IN IMMIGRATION CASES

We were recently instructed by a very vulnerable single mother with significant mental health difficulties. She had previously been granted stamp 4 permission to remain in the State and we were instructed to assist with an application for renewal of that permission pursuant to section 47 of the Immigration Act 2004.

At the time we put in the application we had not yet received a medical report or medical records to substantiate our client’s significant mental health difficulties. Rather we submitted the application on a provisional basis relying on personal statements from the applicant and her daughter substantiating the difficulties she had had with serious mental illness and detailing the difficulties that she would face should she be expected to return to her country of origin. We had prepared detailed submissions to send to the Department setting out our arguments with respect of the mental health position and we were awaiting a medical report from our client’s psychiatrist before submitting these further submissions.

To our surprise and to our client’s enormous relief, before we had even received the medical report and records and finalised our further submissions, our client was granted an extension of her leave until 2017. Our client is extremely happy to have had her application determined so quickly. In fact our original letter was dated the 10^th of September 2014 and a positive decision was received 15 days later.

This is obviously a very positive development for our client especially given her vulnerability however it shows the considerable inconsistency in the timeframes within which applications are being dealt with by the Department.

While working on this case, we have also been in correspondence with the Department in relation to a case where the applicant has had an application for leave to remain pending since February 2009. We are now at the point of issuing High Court proceedings to compel the Department to make a decision. It is a little confusing that that type of application must wait five years to be determined while a renewal application can take just 15 days even when in the latter, all the information has not yet been provided to the Department.

We hope that the decision making process will become consistent and streamlined and more efficient in coming months. At present, it is unpredictable and difficult for applicants some of whom wait extremely long periods for a decision on vital matters such as their ability to remain lawfully in the State

Rebecca Keatinge
Brophy Solicitors

SUCCESS IN FAMILY REUNIFICATION APPLICATION

One of our clients received a positive decision this week in a long-running family reunification case we have been advising on. 

The application was made in September 2013 by a national of the Democratic Republic of Congo for family reunification with his wife. At the time of the application, the wife was a recognised refugee living in very difficult conditions in a refugee camp in Tanzania. She was also pregnant and gave birth in the refugee camp hospital in April 2014.

The application was well supported by documentation substantiating the relationship, the contact between the couple, the addition of a new born baby, and the dire conditions of the family members. Notwithstanding the documentation provided, DNA evidence was requested by the Department of Justice and Equality in order to satisfy them of the relationships between the parties.  This created a further delay as the family members had to travel a considerable distance to the capital in order to attend the designated clinic for testing.

Positive DNA results were received shortly after the testing and the application, just over a year since the application was made, has now been determined in the favour of our clients to their enormous relief.

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

Overhaul Of The Work Permit Regime

The Employment Permits (Amendment) Bill 2014 came into force on 1st October 2014 implementing significant changes to the employment permit regime in Ireland. Full details can be viewed the Department’s website which has now been updated to reflect the changes and this blog highlights some of the key changes. 

General Employment Permit

The General Employment Permit has been introduced and essentially replaces the previous Work Permit Employment Permit. There are three notable changes to this permit. 

Firstly the ineligible categories for employment permit list has been substantively amended. This list specifies occupations that are not eligible for a permit, in circumstances where the salary is under €60,000. The list is both more specific and expansive than the previous list and specifically names a broad range of occupations for which a work permit will not be available. Managers in a range of sectors including hospitality, health and retail are included together with a number of positions in financial administration. Several new occupations are included including legal associate professionals, estate agent and auctioneers and a range of technicians in the area of planning, architecture and engineering. A major change is the inclusion of chefs on this ineligibility list which covers chefs, butchers, fishmongers and bakers but makes an exception for executive chefs, head chefs, sous chefs and specialist chefs specialising in cuisine originating from a non-EEA state. This much expanded list is likely to have a wide ranging impact on potential applicants who may find that their occupation renders them ineligible for a work permit under the new provisions. 

A further change referred to in our previous blog post is the re-introduction of the 50:50 rule. In the guidelines the Department states that an employment permit will not issue unless at the time of application at least 50% of the employees in a firm are EEA nationals. The 50:50 rule is waived in the following circumstances: A start up company where the employer has been registered with the Revenue as an employer within the last two years and the employer has a letter of support from either Enterprise Ireland or IDA Ireland; an employment permit in force at the time of commencement of the 2014 Act i.e. the Act does have retrospective effect; where on the day of the application the employer has no employees and the foreign national would be the sole employee;

The final notable change is the re-introduction of the Labour Market Needs Test that it appears must be satisfied for all applications, although this is not expressly spelt out in the guidelines. We are seeking clarification on this point from the Department. The Labour Market Needs Test requires an employer to advertise the position for a specific period in order to establish that there are no Irish or EEA nationals available to take up the position. There are limited circumstances where the test need not be satisfied that are set out in the guidelines. 

Critical Skills Employment Permit

The Green Card has now been replaced by a Critical Skills Employment Permit. There have not been significant amendments to the eligibility criteria, however, the highly skilled eligible occupations list has been amended. There is again more precision and detail in the eligible occupations. It is still a requirement that when the annual remuneration is between €30,000 and €60,000 an applicant’s proposed occupation must be contained in the highly skilled eligible occupation’s list. Where the annual remuneration is over €60,000 the specific occupation is not relevant provided it is not included on the ineligible categories of employment list. 

Of note is the fact that an employment permit will not be granted to companies unless 50% or more of employees in the firm are EEA nationals at the time of application. There is again an exemption with respect of start up companies within three years of their establishment and which are supported by the Enterprise Development Agencies, Enterprise Ireland or IDA Ireland. 

Other changes

The new regime creates a number of new permits including a Sport and Cultural Employment Permit, an Exchange Agreement Employment Permit and an Internship Employment Permit. The system retains the dependence/partner/spouse Employment Permit, Intra-Company Transfer Permit and Contract for Services Permit and there is a specific Reactivation Permit, which is designed for situations where a foreign national, who entered the State on a valid employment permit but who fell out of the system through no fault of their own, can work legally again. 

It is now a requirement that business users make payments by electronic funds transfer but individuals can still make paper-based payments i.e. by cheque, bank draft or postal order. There are no notable changes in the fee structure. 

We will follow with interest how the new system operates in practice and provide further updates on our blog. 

Rebecca Keatinge

Brophy Solicitors

Immigrant Investor Programme Update

The Irish Immigration Blog

Individuals considering making an application under the Immigrant Investor Programme should be appraised of the current guidelines that apply a number of new criteria that must be satisfied for an application to be successful.

The most significant development is that investors must establish that they have a minimum net worth of €2 million. There is a specific net asset section on the application form that must be completed and applicants must also provide an explanation of all activities for the previous 12 months period indicating their income, investments and loans. It is clear that the Department requires a comprehensive picture of the applicant’s financial position over the last twelve month period so that they can be satisfied that the applicant has legally acquired a minimum net worth of €2 million. 

The eligible investments available to any applicant have not changed considerably and include one of six forms:- Immigrant Investor Bond, Enterprise Investment, Investment Fund, Real Estate Investment Trusts, Mixed Investment or Endowment. The current guidelines provide clarification and detail in relation to the various categories of acceptable investment. 

The same requirements still apply with respect to provision of evidence of funds for investment and evidence of the source of those funds. The Department will consider the following sources of funds:- business and investment activities, Deed of Sale, inheritance and divorce settlements. 

Evidence that the funds can be transferred to an Irish financial institution must be provided and there is now explicit reference in the guidelines to jurisdictions that have controls over the transfer of currency. Our own experience is that such controls may present an obstacle to certain applicants. 

Finally the good character requirement continues to apply. Any applicant as well as their nominated family members who are over the 16 years old must submit a statement of character from the police authorities of each country in which they have resided for six months during the 10 year period prior to making the application. 

The requirement that the individual evidence that they are of €2 million net worth is likely to limit the number of applicants eligible to apply under the scheme. Our own experience is that the Start Up Entrepreneurship Programme (STEP) is a more attractive alternative, requiring a minimum investment of €50,000. It remains to be seen whether a significant number foreign investors will avail of the investor scheme in Ireland when other countries offer comparable schemes that do not have such high financial thresholds.

Rebecca Keatinge

Brophy Solicitors

SPOTLIGHT ON IRELAND’S FLAWED ASYLUM AND PROTECTION PROCEDURES AT UCD CONFERENCE FOR WORLD REFUGEE DAY

On Friday the 20th June last, Karen Berkeley from our offices presented a speech on statelessness for the conference 'Beyond the Single Procedure: Reforming Ireland's Protection System' held at University College Dublin’s Sutherland School of Law to mark World Refugee Day. Karen’s topic was Statelessness: Ireland’s obligations under the 1954 Convention relating to the status of Stateless persons.

Karen discussed the recent successful case of her client Mr Roman Uustalu who was granted the first declaration of stateless status in Ireland. Karen highlighted the urgent need for a comprehensive legal framework to be implemented to fulfil Ireland’s obligations under the 1954 Convention. To see a summary of Karen’s speech, see the attached link: http://brophysolicitorsimmigration.blogspot.ie/2014/06/summary-of-karen-berkeleys-speech-for.html.

Other important issues discussed were the asylum appeals backlog and the proposed single procedure reform to the asylum system.

It was noted that the delays in the high court for hearing appeals by asylum seekers whose refugee status applications have been rejected is one of the main reasons that people spend so long in direct provision centres. There are over 1,000 asylum cases waiting to be heard in the High Court. Barry Magee, the chairman of the Refugee Appeals Tribunal, said that “It would take four years and seven months to get through the current cases on the list, without any new ones being added.”

He added that he would be willing to seek alternatives mechanisms to determine those cases. Sophie Magennis, the head of office with UNHCR in Ireland, delivered the keynote speech and offered alternative dispute resolution as a mechanism which could be considered as a means to reduce the backlog in the High Court.

Patricia Brazil, a barrister and lecturer in law at Trinity College Dublin, spoke about the history of the protection system and judicial review. She noted that it was surprising that Ireland’s figures for judicial review of asylum cases were not higher, given the fragmentation of the asylum system. 

Ms Magennis further noted that UNHCR welcome the proposed single procedure. She said that additional measures could also be introduced, such as the easing of restrictions of the direct provision system and greater access to integration supports for applicants.

 

Karen Berkeley
Brophy Solicitors

UPDATE ON THE IMMIGRANT INVESTOR PROGRAMME

We have been dealing with a number of queries in relation to the Immigrant Investor Programme. The programme is open to non-EEA nationals and their families who commit to a specific investment in Ireland. Successful applicants will be granted rights of residence in Ireland with an initial period of two years and then a further three years after which they may be eligible to apply for citizenship.

Two specific queries have come up several times when we have been approached by potential applicant investors.

The first question relates to whether or not an investor is required to be resident in Ireland should their application be successful. It is clear from the Departmental guidelines that there is no minimal residence requirement other than a stipulation that the person concerned must visit Ireland at least once every 12 months.

A second query that we have been dealing with is in relation to the different types of investments open to potential applicant investors. The previous guidelines indicated that applicants could apply to an “approved investment fund”. The only guidance provided by the Department on this type of investment was that the fund invested into would have to be regulated for the purposes of doing business in Ireland and the investment strategy of the fund must be compatible with the aim to the scheme.

We have written to the Department on several occasions looking for a further clarification on what types of funds would be acceptable as approved funds. We note that the guidelines on the INIS website have now been updated to deal with this issue. It is stated that the approved investment fund is not available at this point and further details will follow. We refer you to the updated guidelines that are available here.

While the approved investment fund is no longer available, it should be borne in mind that there are a number of other options available to possible applicants including an investment into Irish Enterprise, an investment into an Irish Real Estate Trust and a mixed investment into residential and commercial property. There is also scope to make a one off philanthropic endowment and also provision to invest in the Immigrant Investor Bond.  

It is clear from recent changes to the Entrepreneurship Programme and the Immigrant Investor Programme that these schemes are being honed by the Department and that the guidelines are being frequently updated and amended. Anyone considering making an application should be sure to check the up to date position to check their eligibility and the current requirements.

Rebecca Keatinge

Brophy Solicitors

PUBLICATION OF THE EMPLOYMENT PERMITS (AMENDMENT) BILL 2014

On the 23rd of April 2014, the Minister for Jobs, Enterprise & Innovation published the Employment Permits (Amendment) Bill 2014. The legislation proposes significant changes to the existing work permit regime. 

The new legislation seeks to update the provisions for employment permit schemes in line with policy and economic developments since 2007. The aim is to cater for a changing labour market, work patterns and economic development needs and to ensure the regime provides clarity and certainty to potential investors and employers. 

Notably, the Bill addresses the deficiencies in the existing legislation that were highlighted in the case of Younis. In this case, a loophole in existing legislation was exposed by a 2012 High Court judgement that overturned a Labour Court decision to award Mr. Younis over €92,000 in back pay. The High Court found that the Employment Permits Act, 2003 prevented an undocumented worker from seeking redress under labour law as the employment contract cannot be recognised. Mr. Younis had worked for seven years as a chef on pay of just ¢55 per hour but he was prevented from securing redress as his employment contract could not be recognised. The new Bill is stated to prevent employers from benefiting from illegal employment contracts in situations where an employee does not hold an employment permit but is required to do so. 

The legislation proposes to create nine categories of employment permit retaining the existing permits of a spousal/dependent employment permit, an intra-company transfer permit, and a contract for services permit. A critical skills employment permit will replace the existing green card and will permit immediate family reunification and provide what is stated to be a fast track to residency. A general employment permit will operate and be issued in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years or for other occupations apart from those included on the list of ineligible jobs. This permit equates to the existing work permit. Most notably there will be introduction of a reactivation employment permit, which will allow for return of individuals to employment, who had fallen out of the employment permit system through no fault of their own. There will also be provision for an exchange agreement employment permit, sports and cultural employment permit and an internship employment permit. 

It should be noted that none of these provisions are yet law and it could some time until they are enacted. To read more about the proposal reforms, see the Employment Permits (Amendment) Bill 2014 and government press release here. Also see a press release from Migrant Rights Council of Ireland welcoming the Bill here.

Rebecca Keatinge

Brophy Solicitors

ATYPICAL WORKING SCHEME

We have recently dealt with a number of queries that relate to the applicability of the Atypical Working Scheme. 

This scheme was introduced on the 2nd of September 2013 as a pilot scheme in agreement and cooperation with the Department of Jobs, Enterprise and Innovation. The scheme is under the remit of the Department of Justice. 

We understand that the Atypical Working Scheme was introduced in order to facilitate work permission in circumstances where applicants did not fit squarely within the work permit criteria. The principal circumstances where an applicant may be eligible include the following: 

• where an applicant is seeking to undertake a short term contract work where a skills shortage has been identified;
• where an applicant is providing a specialised or high skilled to an industry, business or academic institution;
• where an applicant is seeking to take up trial employment in respect of an occupation on the highly skilled occupations list;
• where an applicant is seeking to take up a paid internship. 

These circumstances are not exhaustive and we understand from our own enquiries that the scheme has a degree of flexibility to facilitate non-EEA workers who have secured employment in the State but do not fit within the perimeters of the work permit schemes. We understand that permission is not generally granted for upwards of a 90 day period.

Perspective applicants are invited to contact the scheme directly to check whether or not their particular circumstances may fall for consideration under the scheme. 

Applicants should be aware that there is a non-refundable application fee of €250 and that a designated application form must be completed. A processing time of approximately two weeks applies. Visa required nationals should be note that they must apply for permission under the scheme prior to entering the state and they must then secure an entry visa on the basis of any approval letter issued. 

Further information in relation to the scheme is available here. We would be happy to deal with any queries you may have in relation to the applicability of the scheme.

Rebecca Keatinge

Brophy Solicitors

WHEN CAN I APPLY FOR A CONTRACT SERVICE PROVIDER WORK PERMIT?

We have recently advised on a complex query in relation to contract service provider work permits. 

Our client is a foreign company who was seeking to make an application on behalf of three non-EEA nationals due to come to Ireland to complete work under a contract service provider agreement. The problem arising for our client is that while they are the employers of the non-EEA nationals, they are not party to the contract to provide services to a large Irish entity. A different foreign company was the contracting party. Our client was instead a sub-contracted third party and this presents difficulties with respect of the application for such a work permit. 

Contract service provider work permits are issued in circumstances where a foreign undertaking has won a contract to provide services to an Irish entity on a contract for services basis. The permits are designed to facilitate the transfer of non-EU employees to work on the Irish contract in Ireland provided certain criteria are met. These criteria are distinct to the criteria for a straight forward work permit and include the following requirements: 

• Employees must have worked for the foreign company for a minimum of six months prior to the application. 
• The duration of the transfer must be at least 90 days. 
• The employees should be in receipt of total remuneration of €40,000 or more, in circumstances where the employee is on a non-Irish payroll. 
• For remuneration between €30,000 and €40,000, the employees must be on an Irish payroll. 
• In the calculation of remuneration, the Basic Maintenance Allowance, per diems and housing and other benefits may be included. Each application must include a spreadsheet showing the calculation of remuneration details.
• If the occupation is one listed under the Highly Skilled Occupations List, then there will be no need to undertake any labour market needs test. The labour market needs test applies in the case of all other occupations.
• A Tripartite Agreement, between the foreign company, the employee and an Irish host entity is necessary where the employee remains on the foreign payroll.
• The Irish host company must be the applicant for the purposes of the application. 

It is essential to note that the contract for services must be a one to one contract with an Irish entity. This type of work permit will not issue in instances where work is being subcontracted to a third party and that third party is the employer of the applicant employees. In such circumstances, it will be necessary to consider other options such as an intra-company work permit application or straight-forward work permit application. 

Rebecca Keatinge

Brophy Solicitors

UPDATE - GOOD NEWS ON WORK PERMIT APPLICATION

Many clients have attended our offices recently and expressed concern about how difficult it is to secure a work permit at present. We are pleased to report however that we recently received another positive decision in a work permit application. 

Our client has been in the State since 20007 and has resided as a student on Stamp 2 permission. Our client had made two previous applications for a work permit that had been rejected partly on the basis that the proposed job was not suitable and did not fit within the work permit criteria. Our client is extremely well-qualified however and with our advice, was able to show that the job offer did fit within the criteria and he was indeed eligible. 

The key to success in this and other recent cases we have dealt with is ensuring that the applicant provides sufficient supporting documentation and squarely addresses any issues arising in the previous applications that have been refused. 

Our client is extremely pleased with the outcome as is his employer, who believes the particular skills and experience of his new employee will help grow the business and create more employment in the future.

Rebecca Keatinge

Brophy Solicitors

BUSINESS IMMIGRATION UPDATE: IMMIGRANT INVESTOR PROGRAMME

We have received several queries from prospective investors looking for information on the Immigrant Investor Programme that was introduced by the Department in July 2013. 

The purpose of the Immigrant Investor Programme is to enable non-EEA nationals and their families who commit to an approved investment in Ireland to acquire a secure residency status in Ireland. The application is considered by an Evaluation Committee who make a recommendation to the Minister for Justice and Equality as to whether or not the application meets all necessary requirements. 

Qualification Criteria: 

In order to be eligible for the programme, an investor must propose an investment in one or more of the following five categories;

a) A once off endowment of a minimum of €500,000 to a public project benefiting the arts, sports, health, culture or education. (The endowment figure is reduced to €400,000 per person where 5 or more individuals pool their endowment for one appropriate project). 

b) A minimum €500,000 aggregate investment into new or existing Irish businesses for a minimum of three years.

c) €500,000 invested in an approved fund. The funds will have to be regulated for the purpose of doing business in Ireland and the investments strategy of the fund must be compatible with the aims of the scheme. 

d) Minimum €1,000,000 investment in a special zero interest 5 year immigrant investor bond.

e) Mixed Investment. Investment in a residential property of minimum value of €450,000 and a straight investment of €500,000 into the immigrant investor bond, giving a minimum investment of €950,000.

Residency permission:

Applicants for the Immigration Programme who have their investment proposals approved are invited to apply for residency permission under the Programme and will be eligible for permission to reside and work in Ireland for two years. During this period beneficiaries must have private medical insurance and must not have recourse to public funds. Permission will be renewed thereafter subject to the investment remaining in place thereafter for the designated period and as long as the Evaluation Committee are satisfied with the success or viability of the investment.

Advice: 

We are happy to advise prospective applicants on their eligibility and draft applications on their behalf. 

**Updated by Brophy Solicitors on 4th February 2014**

Rebecca Keatinge

Brophy Solicitors

Immigrant investor update: Start-up Entrepreneur Programme

The Irish Immigration Blog

We have recently had several queries in relation to the Start-Up Entrepreneur Programme, introduced by the Department of Justice in 2013. This Programme enables non-EEA nationals and their families who commit to high potential start-up business in Ireland to acquire secure residency status in Ireland. 

Applicants must fulfill certain criteria and permission from the Minister for Justice and Equality under the terms of this Start-up Entrepreneur Programme.

Qualification Criteria:

The High Potential Start-up (HPSU) must:

• introduce a new or innovative product or service to the international market
• be capable of creating 10 jobs in Ireland and realising €1 million in sales within 3-4 years of starting up
• be led by an experienced management team
• be headquartered and controlled in Ireland
• be less than 6 years old (existing HPSU businesses can be moved to Ireland)

The Programme is not intended for retail, personal services, catering or other businesses of this nature, where the existing business immigration channel known as the “Business Permission Scheme” may be a suitable alternative. It should also be noted that the Department also introduced an immigrant investor programme specifically for individuals who seek to invest in the State as distinct from operating a business here. 

Important factors and documentation to consider when applying for the Start-up Entrepreneur Programme include:

• There are no initial job creation targets as it is recognised that start-up business such as these need time to get up off the ground
• The applicant must have access to funding of €75,000 (this may be provided by or from a combination of; their own resources, a business loan, business angel/venture capital funding or a grant from an Irish State Agency)
• If there is more than one principal, other than family members, each principal will be required to demonstrate access to funding of €75,000 
• A statement of character from police authorities of each country in which they have resided for more than 6 months during the 10 year period prior to application. 
• A successful applicant is required to submit an affidavit attesting to their good character and affirming no criminal convictions.

We anticipate further developments to the Start-up Entrepreneur Programme and other business immigration schemes and expect to post updates on our blog.

Rebecca Keatinge

Brophy Solicitors

Unlawful killing of deportee should be a warning to all States

Last week, an inquest jury in the UK returned a verdict of unlawful killing of Jimmy Mubenga, an Angolan national who died on board a plane at Heathrow airport in October 2010 while being deported from the UK to Angola. He died of positional asphyxia at the hands of G4S security guards, independently contracted by the UK Home Office to effect deportations. The inquest jury held that the G4S officers used unreasonable force when they held Mr Mubenga with his head down, restricting his breathing. Passengers heard Mr Mubenga calling for help and saying that he could not breathe. Passengers told the inquest that Mr Mubenga was crying out: "They're going to kill me." Mr Mubenga was pronounced dead on the plane a short time later. He had been in the UK for sixteen years and leaves a wife and five children.

This is a chilling and disturbing case on a number of levels. The high profile case shows up the dark side of deportation. It is a part of the immigration process we hear and read very little about. By its nature, it is difficult to get information about how deportation is effected and how deportees fare. I recall an Iranian client called me from Iran to tell me how he had been restrained, punched and beaten in the course of his deportation from the UK. Yet there was very little we could do to help him as he was outside of the UK and had no evidence to document what had happened to him.

In the UK, independent contractors such as G4S are brought in to effect deportations. Deportation is the most costly part of the immigration process for any State and sub-contracting its implementation is one way to reduce costs.

But questions are now being asked as to whether such sub-contracting might come at a higher cost. The G4S guards involved in the tragic deportation effort of Mr Mubenga failed to adhere to their own guidelines. Furthermore, the inquest found that the guards would have known that their actions were causing Mr Mubenga harm, even serious harm. During the hearing more sinister details emerged: two of the guards had a string of racist "jokes" on their phone containing what the coroner Karon Monaghan QC described as "very racially offensive material". All this reinforces the need for any necessary deportations to be effected in an appropriate, safe and transparent manner. The tragic case of Mr Mubenga shows that sub-contracting this difficult process out to a third party is not a safe option and can have devastating consequences.

A full briefing on the Mubenga case can be read here:
http://www.inquest.org.uk/pdf/briefings/INQUEST_briefing_Jimmy_Mubenga_updated_may_2013.pdf

 

Rebecca Keatinge
Brophy Solicitors