NATURALISATION UPDATE: SECTION 28 DECLARATIONS

Section 28 of the Irish Nationality and Citizenship Act 1956 (as amended) provides that any person who claims to be an Irish citizen, other than a naturalised citizen, may apply for a certificate of nationality stating that the applicant is an Irish citizen.

Pursuant to this, we have recently dealt with an application regarding two minors claiming Irish citizenship under Article 6 A of the 1956 Act which provides that “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years”. 

The father of the applicants entered the state in 2005 following his refugee father’s successful application for family reunification under Section 18 of the Refugee Act. The children in question were subsequently born in 2009 and 2011, their father therefore having in excess of the three year reckonable residence necessary for his children to be deemed Irish citizens. However, the applicants’ initial application for Irish passports was refused on the grounds that there were gaps in the father’s registration in the Register of Non-nationals. 

Applying the judgement of Mr Justice Ryan in Sulaimon V Minister for Justice Equality and Law Reform it was successfully argued that the gaps in the register were through no fault of the applicant’s father, whose lawful residence had been acknowledged on several occasions by the Minister through the granting of family reunification under section 18 of the Refugee Act and through the granting of visas permitting travel to the state.

Following a lengthy decision period by the department, we are pleased that certificates of nationality have been granted to the applicants in question. Brophy Solicitors wish to congratulate the applicants on their success and wish them well in the future. 

Caroline Grogana

Brophy Solicitors

MIGRANT ACCESS TO SOCIAL SECURITY & HEALTHCARE: POLICES AND PRACTICE IN IRELAND

Migrant access to social security has proved controversial across Europe, with a widespread perception that migrants account for a larger proportion of social security recipients than nationals. However, administrative data proves this to be incorrect, illustrating that in a number of social security areas there is actually an under representation of migrants as opposed to nationals. 

A recent European Migration Network (EMN) study finds that in terms of jobseekers benefit there is a disproportionately low level of migrants receiving payments at 14.7% of recipients, compared to their 15.4% share of the labour force. It was also found that the number of EU nationals between the ages of 15 and 28 receiving jobseekers allowance and jobseekers benefit were disproportionately high at 9.7% and 8.7% respectively while only accounting for 7% of the total labour force. In contrast non-EU nationals were found to be underrepresented only accounting for 3.1% and 1.6% of each benefit despite making up 4.1% of the labour forces. The study and its findings can be viewed here: http://emn.ie/files/p_201407170618162014_Migrant%20Access%20to%20Social%20Security.pdf

As well as looking at the numbers of migrants in receipt of the key social security benefits in Ireland, the EMN study also looked at the related policy decision making. In practice, Ireland applies the same rules governing access to social security to migrants as to non-migrants, however, their impact can differ greatly.

Firstly, the necessity of meeting the Habitual Residency Condition (HRC) was examined. While both groups are subjected to the same requirements, the impact on each can be substantially different. This is mainly due to the fact that there is not a sufficiently clear definition of Habitual Residence leaving a huge amount of discretion to the deciding officer in the Department of Social Protection. A number of NGOs have characterised the assessment of Habitual Residence as “too subjective and complex” to allow consistency in decision making. A 2008 Barrett and McCarthy study suggests that this discretion might very well be the reason for the lower proportion of migrant recipients. 

Difficulties can also arise from the assessment of the applicant migrant’s right to residence. In theory it entails a straight forward assessment of their status. In reality, it is much more complex due to the various permits available and the different rights each confer. Ten years on from its 2004 introduction, the system undoubtedly needs significant updating.

The EMN study also highlighted the ambiguity which has arisen from the separate evolution of the Irish immigration and social security policies. By way of example, would the holder of a work permit for a specified job be categorised as ‘available for and genuinely seeking work’? What exactly qualifies as ‘becoming a burden on the state’?

Similar issues are faced in regards to access to health services with migrants having to satisfy ‘ordinary resident’ conditions of having resided in the state or intending to reside in the state for at least a year. Despite its formal introduction in the Health Services (Amendment) Act 1991, no formal definition was provided, once again causing ambiguity and uncertainty.

As noted by the EMN study and from our own experience, there are clearly issues and discrepancies which need to be addressed in relation to migrants access to social security and health services.

Caroline Grogana

Brophy Solicitors