Hungarian Passports for Sale!

The Hungarian government are planning to sell special residency bonds to help pay off the country’s debt.

Hungary has billions of euros worth of foreign currency debt, equivalent to 78% of its annual economic output, with the country’s debt being the highest in Central and Eastern Europe, according to Moody's Investors Service.

The Initiative  aimed  at Chinese investors, would involve spending €250,000  to  the indebted  country in exchange for preferential immigration treatment.

It has been indicated by politicians that  foreign  investors would receive residency and ultimately citizenship.

The concern for other EU countries is that a Hungarian passport  comes with the entitlement to live and work across the EU.

http://rt.com/news/hungary-citizenship-buy-bonds-663/

http://www.telegraph.co.uk/finance/financialcrisis/9644190/Hungary-plans-to-offer-passports-to-investors-buying-its-debt.html

Brophy Solicitors

23.11.12

PARENTS OF ROMANIAN AND BULGARIAN NATIONALS WHO ARE PARENTS OF IRISH CITIZEN CHILDREN

We posted a recent blog in respect of a change of policy concerning the right to work for Romanian and Bulgarian nationals who are also parents of Irish citizen children.  As of the 28^th February 2012, such persons shall not require an employment permit to work in Ireland. 

A number of our clients who had applied for employment permits or who had applied to be registered as self-employed with the Department of Jobs, Enterprise and Innovation have received letters from that Department stating that they are entitled to work in the State without an employment permit.  The letter also states that it should be both that Romanian/Bulgarian nationals and their Irish citizen child must be resident in the State as a family unit.

We have also been advised that our applications pending with the Department of Justice and Equality in respect of Romanian/Bulgarian parents of Irish citizen children shall be determined this week and we expect a similar letter shall issue from that Department authorising our clients to work without the need to apply for a permit.

We welcome the Minister’s approach to resolving such cases, which would have no doubt ended in litigation in respect of such person’s entitlement to work in the State.  We shall advise our readers as to the Department of Justice and Equality’s precise position as soon as possible.

Brophy Solicitors

04.05.12

EU TREATY RIGHTS AND PERMANENT RESIDENCY – UK DEVELOPMENTS

CASE STUDY:  Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC) is a case concerning  the approach to be taken by the First and Upper Tribunals in deciding whether the non-EEA national family member (of an EEA national) has or has not acquired the right to reside permanently in the UK under Art 16 of Diretive 2004/38/EC which is transposed into UK law by Regulation 17 of the EEA Regulations. The right of permanent residency is acquired by EEA nationals and their family members who have resided in the UKfor a period of 5 years. 

In Idezuna the Nigerian Appellant married his spouse who was a national of Portugal in April 2004.  He had been given a 5-year residence card showing that he was the family member of an EEA national, which expired on the 13 September 2009.  Mr. Idezuna and his wife divorced in March 2010, and Mr Idezuna applied to the appropriate authoirties for a residence card showing that he was entitled to live in the UK permanently. 

Mr Idezuna’s application was refused.  The UK Border Agency said that he had not provided evidence showing that his Portuguese wife had been exercising her EU Treaty rights at the time of their divorce or that he had been living in the UK in accordance with the EEA Regulations for a period of 5 years.  

He appealed the decision to the First Tier Tribunal which upheld the UKBA’s decision, stating that Mr Idezuna had not shown that his ex wife had been exercising Treaty rights in the UK for the 5 years up to the divorce.  He had also not shown that he lived in the UK continuously after marriage. 

Subsequently, the Upper Tribunal found that the First Tier Tribunal judge had materially erred in law.  The judge had failed to appreciate that the Appellant had acquired the necessary 5 years living in the UK from the date of his marriage in April 2004 until April of 2009.  During this time his ex-wife had been in the UK"unbrokenly” exercising her EU Treaty rights.   The Immigration Judge’s error was in failing to include in his calculation of the 5 year period, time prior to the coming into force of the Directive.  (See Secretary of State for Work and Pensions v Lassal (2011) Imm AR 134, in which the ECJ had held that any interpretation of the continuous residence requirement such  that the first or last day of the period of five years' continuous residence had to fall after 30 April 2006 (when the Directive came into force) would be contrary to the purpose and effectiveness of the Directive.)

The Appellant had therefore acquired his right to permanent residence in the UK in April of 2009 (when he was still married to his wife). Whether or not he was living together with his wife for the whole of this period was irrelevant.  The fact that they both had been in the UK was important.  (See also Turkey [2011] UKUT 89 (IAC) (07 March 2011)  Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (UK) applies to those who entered a genuine marriage where both parties have resided in the United Kingdom for five years since the marriage; the EEA national‘s spouse has resided as the family member of a qualified person or otherwise in accordance with the Regulations and the marriage has not been dissolved. The ‘residing with’ requirement relates to presence in the UK; it does not require living in a common family home.)

The second matter to assess was whether or not Mr Idezuna had been living in the UK continuously since the date of marriage.  The Immigration Judge in the First Tier Tribunal had taken this point against Mr Idezuna without giving him an opportunity to comment on it.  In fact, there had been only two short absences which fell comfortably within those permitted by the Directive’s Article 16 (3) and Regulation 3 (2) of the transposed UK Regulations. 

The Tribunal made it clear to the First Tier Tibunal that the focus was not so much directed to the nature of the relationship between the non-EEA national family member of the EEA national. What had happened up to and after Mr Idezuna’s divorce, and what his wife had been doing at those times had in fact been wholly irrelevant to the question of whether he had the right to reside in the UK.

Brophy Solicitors
28.03.12

IMPACT OF ZAMBRANO: RESOLUTION FOR MR & MRS HURLEY

We noted with interest the positive development in the long running case Gerard and Caroline Hurley that has now finally been resolved. The grant of permission to Mrs Hurley to work and reside was reported by the Irish Times over the weekend. The Irish Times also reported on the plight of Mrs Hurley back in December. 

Caroline Hurley applied to remain in the State on the basis of her Irish citizen child and her marriage to Gerard Hurley, an Irish citizen. The Department of Justice were pursuing the deportation of Mrs Hurley but it appears they had to review their decision following the landmark decision of the European Court of Justice in Zambrano.

We are working on several similar cases and despite some delays in the Department actually processing the so-called Zambrano applications, applicants are finally meeting some resolution and being granted permission to remain. While we obviously welcome the decision of Zambrano and its timely application, we remain surprised that the Department were so intent and often were able to deport individuals such as Ms Hurley, despite their Irish citizen children and Irish spouses and the protections of family life under the Irish Constitution, the European Convention on Human Rights, and the Charter of Fundamental Rights.

We would be interested to hear of any concerns or problems arising from the Zambrano decision and will of course be keeping you update to date on any new developments or successes we have in this area.

Brophy Solicitors
15.08.11

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

11.08.11

CITIZENSHIP UPDATE

Amendments to the Irish Naturalisation and Citizenship Acts 1956 to 2004 provided for in the Civil Law (Miscellaneous Provisions) Act, 2011

Part 10 Section 33 of the Act provides for the following amendments:

• That civil partners will receive the same treatment as married couples in the context of citizenship matters. This means that civil partners of Irish citizens will now only need three years reckonable residency to apply for Naturalisation.  Applicants will have to provide documentary evidence of the partnership and will still have to comply with the other requirements for Naturalisation i.e. be of good character, self-sufficient etc. Brophy Solicitors welcomes this legislation, which brings equality in the processing of Naturalisation applications between spouses and partners of an Irish citizen.

• That the citizenship ceremonies take place in a manner prescribed by the Minister. Until recently a person granted citizenship took an oath before a District Court Judge and the new citizen subsequently received their Certificate of Naturalisation by post. Howover a  pilot ceremony took place in Dublin Castle on 24^th June where Justice Bryan McMahon, retired judge of the High Court, assumed the role of presiding officer. At this ceremony new citizens recited a declaration of fidelity to the nation and loyalty to the State. It is hoped that similar ceremonies will be run throughout the country in future. 

• That the Minister will prescribe the fees for applications for Naturalisation. The current fee is €950. 

Brophy Solicitors
09.08.11