Immigration registration fee increased without warning

This week, the fee required for non EU people who are legal residents in the state to register with the authorities has increased from €150 per person to €300 per person. 

Thousands of immigrants who currently live in Ireland, including international students will be affected.

The Immigrant Council of Ireland have criticized this sudden hike in registration costs saying that: 

“The manner in which the new €300 fee was announced flies in the face of Government commitments to bring in a modern, streamlined and transparent Immigration System and in some cases will see families being forced to pay hundreds of euro more, even before the budget.”

Denise Charlton, Chief Executive of the Immigrant Council of Ireland said:

“The Government is quick to highlight and publicise the progress which has been made on citizenship, visas and in reducing bureaucracy, but this increase which will hit families hard, has effectively been announced by stealth. 

Individuals and families who are legally resident here are being asked out of the blue to dig deeper than ever before.”

Irish registration fees are now amongst the highest in Europe, in Belgium the fee is generally no more than €50, in Italy it is just over €100, with a similar charge in Austria.

http://www.immigrantcouncil.ie/media/press-releases/608-100-overnight-jump-in-immigration-fee-completely-unjust-sudden-announcement-comes-without-notice-or-consultation

Brophy Solicitors

26.11.12

Coalition Welcomes New INIS Guidelines for Immigrants Experiencing Domestic Violence

The Immigrant Council of Ireland (ICI) has commented on the new Irish Naturalisation and Immigration Service (INIS) guidelines for immigrants that are victims of domestic abuse, specifically if the right to reside in Ireland is dependent on the abuser. The guidelines contain information on how to “obtain immigration status independent of their relationship with the perpetrator.” These guidelines are important for someone who is here on a family visa, or because of EU Treaty Rights, where their permission to reside is dependent on their partner’s immigration status, their citizenship of the EU, or their status as a worker. The person suffering the abuse might be frightened to seek a safer situation, and leave the abusive relationship, because they might be afraid that their permission to stay will be revoked. The majority of those affected are women, and these women should know that they have clear options for staying in the state while leaving the abusive relationship.

The INIS report is “aimed at explaining how a victim of domestic violence whose relationship has broken down can apply for independent immigration permission in his/her own right.” The guidelines then specifically define domestic violence, and then clearly state that “you do not have to remain in an abusive relationship in order to preserve your entitlement to remain in Ireland.” Applications must be made from within the state, and the applicant must have a current, valid immigration status. In the application, the applicant must state out the circumstances of the abuse, whether or not the family home has been broken up, and any supporting evidence possible, including a Protection Order from the Courts, a Garda report, and medical records. Generally, the applicant will retain the same immigration status they held previously, a stamp 3. However, stamp 3 does not enable a person to work, so if it becomes necessary for the applicant to work to provide for herself and any dependent family members, special consideration will be given.

Brian Killoran, of the ICI, has called for INIS to ensure that these women will be granted unrestricted access to the labour market and emergency support. There are a few other issues with the guidelines, as it is not clear exactly what status will be given, since the applicant is no longer dependent on their abusive partner. However, the guidelines do contain helpful information for victims of domestic violence. They are in an extremely vulnerable position, and it is crucial for them to be aware of the fact that they can leave their abusive relationship and still retain permission to reside in Ireland.

Brophy Solicitors            

23.08.12

http://www.immigrantcouncil.ie/media/press-releases/569-coalition-welcomes-new-inis-guidelines-for-immigrants-experiencing-domestic-violence

Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11

Aftermath of Zambrano

ACTIVITY SURROUNDING ZAMBRANO

The potential impact of the Zambrano decision is already making its mark in the office – we have been inundated with calls from clients, members of the public and press.  Brophy Solicitors has certainly welcomed the decision in terms of the benefits and rights arising from a person’s status as a member of the Union and we are aware that the impact of Zambrano is not to be underestimated.  The decision goes beyond the current Free Movement Directive and Regulations in dealing specifically with what it means to be a citizen of the Union.  

We have already released a statement to the press in respect of one of our cases concerning the deportation of the father of an Irish citizen child. (See article by Jamie Smyth, Irish Times, 10^th March 2011) The father voluntarily left the State following a deportation order having been issued against him, and judicial review proceedings are in place to challenge the deportation order.  We are now working on the application to revoke the deportation order on the basis of the Zambrano judgment. 

Apart from this very obvious instance of how Zambrano may be applied ,we have to deal with a host of potential situations in which the case may have an impact (or may not). In fact, the case has raised many more questions than answers. For example, to which family members of an Irish citizen will the judgement apply? Can partners and spouses of Irish citizens benefit from the judgment? What about the non-marital family and parents who do not have a direct involvement with their children’s upbringing? How will the decision impact guardians?  What exactly does ‘dependency’ entail? Are all children not dependant on their parents? Do the rights of the EU citizen child extend beyond reaching the age of majority? How will social welfare policy be affected and the requirement of habitual residency? Will parents of Irish Citizen children currently resident on Stamp 3 conditions now have their status amended so that they can reside and work in the State? 

It seems to us that many of these questions can only be confirmed by the courts, and potentially the questions will be referred by the High Court back to the European Court of Justice during the determination of particular cases. 

We welcome the statement released by the Immigrant Council of Ireland saying that Ireland’s practice of refusing to give some parents of Irish children permission to live and work in this country must now end and that those parents who had already been deported must be allowed to return. 

We are now working toward submitting applications to revoke deportation orders as well as making change of status applications for family members of Irish Citizens on restricted residency permits. We are also updating applications for visas for family members of Irish citizens. In fact, we are reviewing all current cases to which we think Zambrano may apply and we are also in dialogue with interest groups and NGO’s in an attempt to pool all knowledge and information. We welcome your comments and questions.

Sarah McCoy, Brophy Solicitors

11.03.11