NATURALISATION APPLICATIONS ON BEHALF OF MINORS

Recently we have achieved successful outcomes in varied naturalisation applications, including individuals who entered the state as minors, and applications based on Irish association.

The Laws governing citizenship in Ireland are set out in the Irish Nationality and Citizenship Acts 1956 as amended by the Irish Nationality and Citizenship Act 2004. The general criteria required by s15 is that the applicant must have reckonable residence in the state for a period of one year immediately prior to the application and four years in the eight year period immediately prior to that. Naturalisation however, is a particularly interesting procedure from the aspect that under s16 of the Act the Minister does have absolute discretion to grant naturalisation it’s applicants who may not have complied with ANY of these conditions. 

General Overview - Minor Applicants (including those aged up to 23)

All persons over the age of 18 must apply for Irish citizenship in their own right via Form 8.

Currently it seems it is policy that a person on stamp 2/2A under the age of 23 can use their parent’s permission to remain to support their application, provided they entered the country as a minor and part of a family unity. The procedure for calculating reckonable residence in such cases is as follows:

Periods spent in state until age of 16 

· On the basis of reckonable residence of either parent provided there is evidence to show the child has been present in the state.

Between the ages of 16 and 18

· On the basis of reckonable residence of either parent provided there is evidence to show that the child has been present in the state and has been registered for that period with the Garda National Immigration Bureau.

Adult Child between the ages of 18 and 23

· On the basis of reckonable residence of either parent provided:

a) There is evidence to show that the child has been present in the state for the period in question, and

b) Has been registered for that period, and

c) Part of the reckonable residence is accrued prior to child turning 18.

In summary, once an individual has entered the state as a minor to join their family, and remained in education until date of application for citizenship, there is a strong likelihood that the application will be successful. We have achieved positive results in such circumstances. 

s.16 Discretion – minor applications 

Moreover, it must be noted that under s.16(b) and s.16(2) 1956 Act provides for minors of Irish descent or Irish association. It is stated:

‘the Minister may in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

b) where the applicant is a parent or guardian acting on behalf of a minor of Irish descent or Irish associations;

s16(2) ‘for the purposes of this section a person is of Irish associations if –

(a) He or she is related by blood, affinity or adoption to a person who is an Irish citizen or entitled to be an Irish citizen

(b) He r she was related by blood, affinity or adoption to a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.’

Therefore, the Minister may use his discretion to waive the statutory requirements for granting naturalisation in respect of applicant’s who are related to Irish citizens (and notably those considered entitled to Irish citizenship) by blood, affinity or adoption, even if the Irish citizen in question/entitled individual, is now deceased.

It is thus apparent that there are a vast range of circumstances which can be considered compliant with the Irish Nationality and Citizenship Acts. However, it must always be emphasised that the Minister’s discretionary powers also entail that ANY application may be refused if the Minister decides there are grounds proper to render a negative decision. Naturalisation decisions cannot be appealed, but applicants are enabled to reapply. 

If you require any further information, or require assistance as regards these applications, please do not hesitate to contact Brophy Solicitors.

Naomi Pollock

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

SUBSIDIARY PROTECTION – UPDATE ON THE IMPLEMENTATION OF THE NEW PROCEDURE

The processing of all existing and future subsidiary protection applications was 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. This involved the creation of a new determination process, which includes a second interview. Previously the application was judged on the interview with the applicant during the asylum applications, which lead to many issues in respect of fair procedure, including credibility.

For a comprehensive break down of the new determination process, please see the following information chart provided by the UNHCR: http://www.unhcr.ie/news/irish-story/subsidiary-protection-what-you-need-to-know

As January 2014 drew to a close, clients have attended interviews administrated by ORAC in respect of their subsidiary cases.

We have been informed that the format is very similar to the interviews at the asylum stage. Clients have been told that they should expect to receive a decision in respect of their applications in a month’s time.

As many applicants have been within the subsidiary protection procedure for periods extending beyond even 5 years, being finally provided with an estimated time frame regarding the determination of their case, within the near future, is greatly welcomed.

Naomi Pollock

Brophy Solicitors

EUROPEAN COURT RULES PERIODS IN PRISON CANNOT BE CONSIDERED FOR PURPOSES OF ACQUISITION OF A PERMANENT RESIDENCE PERMIT

Cases C -378/12 and C-400/12 Nnamdi Onuekwere v Secretary for the Home Department, Secretary of State for the Home Department v G

Case C-378/12

Mr Onuekwere’s application for a permanent residence permit was dismissed on the basis that his time spent in prison was not applicable to considerations regarding the acquisition of a permanent right of residence.

It was firstly noted by the Court that a third country national who is a family member of a Union Citizen who has exercised his right of free movement and residence, may only count the periods which he has spent with that citizen for the purposes of acquisition of a right of permanent residence. Therefore, the periods during which he has not resided with that citizen because of his imprisonment in the host Member State, may not be taken into account for that purpose. 

It was further noted by the Court that the EU legislature made the acquisition of the right of permanent residence subject to the integration of the person concerned in the host Member State. It was submitted that time spent in prison evidences non-compliance with State laws and consequentially a failure to properly integrate into that society. Thus considering periods of imprisonment for purposes of acquisition of the right of permanent residence would be contrary to the aims of the Directive.

For these reasons it was held that the continuity of residence of 5 years was interrupted by periods of imprisonment in the host Member State. As consequence of this, the periods which precede and follow the periods of imprisonment may not be added up to total the minimum period of five years required for the acquisition of a permanent residence permit.

Case C-400/12

This case concerned an expulsion order on grounds of public policy against a Portuguese national who had been resident in the UK for more than ten years.

It was opined by the Court that unlike the requisite period for acquiring a right of permanent residence, which begins when the person concerned commences lawful residence in the host Member State, the 10 year period of residence necessary for the grant of enhanced protection against expulsion must be calculated by counting back from the date of the decision ordering the expulsion. It was further noted that the residence must, in principle, be continuous. In relation to integration in society, the court held on the same basis as in Onuekwere, periods of imprisonment cannot be taken into consideration for the purposes of the calculation of the ten year period of residence

It was stated by the Court that periods in prison, in principle, interrupt the continuity of the period of residence for the grant of enhanced protection. However, it was further pointed out that to determine the extent to which the non-continuous nature of the period of residence prevents the person concerned from enjoying enhanced protection, an overall assessment of the situation must be carried out. Such an assessment should consider whether the integrating links between the person and the Member State have been broken, relevant considerations of the imprisonment and furthermore the fact that the person may have been resident in the state for ten years prior to the imprisonment. 

Summary 

In summary, periods spent in prison will not be considered in respect of a permanent residence application, due to that fact that during this time the applicant is not residing with the EU citizen and furthermore, the applicant, as consequence of his violation of that States laws, has failed to evidence integration within that Member State’s society. This was held to be in contravention to the aims and purposes of the Directive. 

In cases where the citizen has been residing in the State for a period in excess of ten years, the residency period necessary for the grant of enhanced protection against expulsion must be calculated by counting back from the date of the decision ordering the expulsion. Furthermore, it was held that in such situations an overall consideration of all relevant factors must be provided in respect of determining the ‘continuity’ of the citizen in questions residence.

Naomi Pollock

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

DUBLIN III RECAST REGULATIONS

The festive season is upon us, with Christmas fast approaching and the New Year just around the corner. In respect of immigration law, January 2014 also heralds the introduction of the Dublin III recast regulation in Ireland. 

The Regulation comes into force on 14th January 2014 and shall apply to applications for international protection lodged after that date. The Dublin III regulation is the only ‘recast’ that Ireland has opted in to. 

The purpose of the Dublin Regulation is to lay down the criteria and mechanisms for determining member state’s responsibility for examining an application for international protection, lodged in one of the member states by a third country national or a stateless person.

The main objectives of the amended Regulation is to enhance the efficiency of the functioning of the current Dublin Regulation, as well as to ensure higher standards of protection for the applicants who fall under the responsibility determination procedure.

In reports produced this year by the Jesuit Refugee Service (JRS) and the European Council on Refugees and Exiles, (ECRE) it was highlighted that there are vast differences in the manner the Dublin Regulation is operated by member states. There are no common standards of information provision or reception conditions, and furthermore no common means to assess applicants’ vulnerabilities and special needs.

As a result of these contrasting practices, drastic consequences have ensued, including families torn apart due to government’s focusing on returning the asylum seeker to the country of first entry. Asylum seekers have spent months in detention and upon release, many have no guarantee they will have access to adequate housing and welfare support. 

It is submitted that the new framework includes important amendments in this regard, including the right to information, individual interview, guarantees for minors, a framework setting out the conditions for when a person may be detained, right to effective remedy, a mechanism for early warning, preparedness and crisis management.

These new provisions may better enable people to judicially challenge transfers which may not be in accordance with their fundamental rights.

However, as noted by the JRS and ECRE, the core of this matter and the potential impact that the new Regulations will render depends on how they are implemented on a national level. For a European Common Asylum system to be effective, governments must correctly interpret and implement these regulations. Asylum seekers must have access to fair asylum procedures and decent reception conditions wherever they are in Europe.

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

THE HARSH REALITY OF THE ONGOING ISSUE OF HUMAN TRAFFICKING

The recent horrific discovery of a young girl found abandoned outside the GPO has thrust in the spotlight the ongoing tragedy that is human trafficking.

The girl, originally believed to be 14 or 15 years of age and from Eastern Europe, was reported to be found in a distressed state by Garda Siochana in Dublin City Centre on October 10th. She had no identification and was unable to speak with officers when discovered. 

Although recent developments have led to the belief that the young woman was not in fact a victim of trafficking (see the Irish times news report here http://www.irishtimes.com/news/ireland/irish-news/woman-found-in-dublin-to-remain-in-state-care-1.1586938), the incident still brings home the harsh truth of those vulnerable to and suffering from the crime of human trafficking.

The Immigration Council of Ireland (ICI) have stressed that official figures confirm that over half the victims of human trafficking in Ireland are children. 48 people were identified as being trafficked victims in 2012, with most having been sexually exploited and 23 of those were children.

Recently, (26th September 2013) GRETA (Group of Experts on Action against Trafficking of Human Beings) published a review entitled ‘Report Concerning the implementation of the Council of Europe Convention on Action against Trafficking by Ireland. The Report stated that the number of prosecutions and convictions for human trafficking is still ‘very low’ and the length of criminal proceedings is ‘also a manner of concern’.

Irish authorities were urged by the review committee to take additional measures to ensure that human trafficking offences are investigated and prosecuted effectively, which they say would lead to ‘proportionate and dissuasive sanctions’. It was stressed that new legislation relating to immigration, asylum and human trafficking should be implemented as soon as possible. 

The Immigration Council of Ireland (ICI) has called for development in 4 main areas:

The full implementation of the unanimous recommendations by the Justice Committee for laws targeting the buyers of sex, whose actions fuel trafficking.

The appointment of a National Rapporteur on Trafficking to ensure a joined-up approach across Government and all agencies to respond to this multi million euro crime.

Reform of the system of identifying victims, Ireland has been criticised internationally in this area

The provision of safe and secure accommodation for victims to ensure an end to intimidation, abuse and violence

It must be noted that some progress is underway, with Irish airline crew, airport ground staff, port staff and other transport workers to be offered training to spot victims of trafficking and offer them an escape from pimps and traffickers under a pilot project being developed by the Immigrant Council of Ireland

However, it is necessary to emphasise that human trafficking remains a very real and dangerous concern, prevalent worldwide. Many immigrants into this country and the EU have been or are victims of such crimes. Scarily, many are not even aware that they are such victims. It is necessary to raise awareness of such heinous activity, in order to help prevent and provide aid for victims who find themselves in such circumstances those originally believed of the young woman who is at the centre of the misfortune highlighting the continuing harsh reality of this global crisis. 

To review the Great report, please pursue the following link: 

http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2013_15_FGR_IRL_public_en.pdf

To review the Department of Justice and Equality information website in respect of human trafficking, explaining its causes and what to do in the event of suspicious sightings please see the following link:

http://www.blueblindfold.gov.ie/

Naomi Pollock

Brophy Solicitors