APPLICATIONS FOR DE FACTO PERMISSION IN IRELAND

Since 21st March 2014, INIS have declined to accept applications for De Facto Partnership Immigration Permission in circumstances where the Applicant is present in the State on a C Visit Visa or on foot of the Irish Short Stay Visa Waiver Programme. INIS further clarify on their website that they will not accept applications from persons who are unlawfully present in the State and/or are in the asylum/protection streams at the time of making the de facto application. 

We have several clients who submitted applications while they were lawfully present in the State but since their applications were submitted, their permission has expired or lapsed. We therefore recently sought clarification from INIS as to whether such applications will be processed, despite the current position of the applicant as someone not technically lawfully present in the State. 

INIS have now clarified that applications for a De Facto Relationship Immigration Permission received from non EEA nationals resident in the State who were legally present in the State at the time of application will continue to have their applications processed even in instances where they allow their existing registration or immigration permission to expire. 

In addition, INIS provided important clarification on the position of non visa required nationals. INIS confirmed that applications from non visa required nationals will be accepted provided that on the date the application is received the person concerned has a landing stamp endorsed on their passport permitting lawful entry to the State which is usually afforded for up to 90 days under visitor conditions. 

These changes and our own experience of dealing with many of these applications confirm an increasingly restrictive approach of INIS to De Facto applications. It is our own position that cases must be considered and determined on a case by case basis and absolute restrictions on certain individuals making the application, for example those in the asylum or protection streams, are legally questionable.

Brophy Solicitors

GUIDANCE ON THE TREATMENT AND ASSESSMENT OF BEST INTERESTS OF MIGRANT CHILDREN

UK Court of Appeal decision: EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874,

Summary of facts

The Appellants consisted of a mother, a father and three children, all Philippine nationals. The mother was lawfully resident in the UK on a work permit from June 2007. The rest of her family joined her in April 2008. In February 2011, the Appellants applied for indefinite leave to remain. This application was incorrectly rejected on the basis that it was made on the wrong form. This meant that when subsequent applications were made, they were dismissed on the basis that there is no right of appeal. When the matter was finally considered, the judge rejected the claim because EV was not being paid a sufficient amount for her to qualify. Her employer wrongfully failed to employ her at the relevant rate. The family were denied leave to remain and were expelled.


Summary of guidance

Christopher Clarke LJ held that when deciding on the best interests of a child, the factors that are to be considered are;

(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to live in that country;
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (at paragraph 35.)

He continued: “The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.” (at paragraph 36)


The significance of this case is that the Court of Appeal has given the most coherent guidance to date on how to interpret and apply the best interest of children in immigration cases. This judgment will be useful in giving guidance on the issues that should be addressed by legal practitioners and whether an immigration officer has made a proper assessment of a child’s best interest in their determination. This judgment is obviously not binding in Ireland but offers assistance in an area where there is little Irish case law, policy or guidelines.

Ciara Dowd

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

APPLICATIONS FOR VISAS AND RESIDENCE PERMISSION FOR DEPENDANT NON NATIONAL PARENTS

We are currently working on many applications on behalf of our clients to be joined in the State by their elderly dependant non EEA parent/s. The cases involve general Long Stay Visa applications, and sometimes Change of Status applications while the parent is already in the State.

This is an area now governed by the Minister’s “Policy Document on NON EEA Family Reunification” published in December 2013. The guidelines focus on the financial responsibility for the subject of the application. The matter of whether the subject is dependant or not is left to the sponsoring family member to prove. No definition of dependency is provided. The guidelines indicate that the onus is on the sponsoring family member to show that there is no viable alternative option other than the dependant parent residing in Ireland. The specific financial thresholds referred to in the guidelines include evidencing that the sponsoring family member is earning a minimum of €60,000/ €75,000 (net) for the three years preceding the application (depending on whether one or two parents are the subjects of the application). 

The high financial thresholds will most likely act as a barrier to many applications such as this, if applied very stringently. However, we highlight that the policy guidelines are subject to the parameters of the law. In general, the law requires that each application is assessed on it’s individual merits, and a fair and reasonable outcome is reached, appropriate and proportionate to the circumstances at hand. 

We have limited specific law in this area, other than the significant judgement in the case of Mr Justice Cooke in the case of O'Leary v. Minister for Justice [2012] IEHC 80 (High Court, Cooke J, 24 February 2012). Mr Justice Cooke gave weight to the moral institution of the family, as protected by Article 41 of the Constitution, and confirmed that dependant parents of an adult child remain members of the family unit within the meaning of Article 41. He referred to right to rely on Article 41 when seeking State intervention to discharge a “moral obligation” towards non national family members in need of support and care.

In terms of the lawfulness of any interference by the State in family life, Mr Justice Cooke stated as follows;

“The core value enshrined in Article 41 is the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified, in the interests of individual members of the family or necessary in the overriding public interest.”

Mr Justice Cooke emphasized in his judgement that it would be an unbalanced approach for the Minister to isolate an analysis of dependency to purely financial aspects. He also confirmed the definition provided by Mr Justice Hogan in the judgement granting leave, that while dependency must go beyond “welcome” support, it is not necessary that the receiver of support be in a situation of destitution.

We would submit that in cases where a legitimate relationship of dependency and financial self sufficiency exists, and there are no exceptional circumstances to warrant a lawful refusal, Mr Justice Cooke’s judgement in the O’Leary case gives much scope for applicants to argue their case outside the strict financial thresholds of Minister’s guidelines.

Karen Berkeley 

Brophy Solicitors

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

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

STEP FORWARD FOR THE RIGHTS OF TRANSGENDER PERSONS

We are delighted to confirm that we have won a battle with the Department of Justice to fully recognize our client’s change of gender. We had requested that the Minister for Justice and the Garda National Immigration Bureau to amend the Register of Non Nationals to reflect her gender change from male to female. The amendment of identity documents to reflect change of gender was highlighted by our client’s medical team as being a significant part of her change of gender process. However, both the Garda National Immigration Bureau and the Department of Justice initially refused to do so, each indicating that it was not within their remit. 

The Register of Non-Nationals is under the direction of the Minister for Justice and Equality (section 9(1) of the Immigration Act 2004), and it was the Garda National Immigration Bureau’s position that it required written authorization from the Minister in order to register Ms. Loh as female. We submitted to the Department that there is nothing in the section which prohibits the amendment of register to reflect her change of gender. We submitted that the Irish Naturalisation and Immigration Service, and the Garda National Immigration Bureau, were in fact obliged by section 3 of the European Convention on Human Rights Act 2003 to carry out their functions in a manner that is compatible with the European Convention on Human Rights, which necessitated the amendment. 

Ultimately, High Court proceedings were avoided, when advices from the Attorney General resulted in the Department granting our client the permission she required to re register as a female. She was subsequently provided with a GNIB registration certificate and subsequently a travel document reflecting female gender.

The acceptance and recognition of one’s gender is a fundamental right, and we were very proud to have helped our client to achieve her personal goal, while also making a significant step forward for the rights of transgender persons in Ireland. We wish to congratulate her on having the courage to fight this point of public importance to success. 

However, the rights of transgender persons in Ireland remain below accepted international standards. In October 2007, Lydia Foy’s ten year legal battle for a birth certificate recognizing her true gender ended with a favourable High Court decision. The High Court ruled the State in violation of the European Convention on Human Rights Act 2003 and required that it recognize transgender persons in their acquired and true gender. However, despite this progressive victory for the transgender community, today, Ireland is the only EU state without a legal mechanism for recognition of transgender persons. While discussions for a Gender Recognition Bill have begun, several of its proposals have already been deemed unlawful in countries such as Germany and Austria, most notably the requirement of married transgender people to divorce their partners before applying for gender recognition. Thus, while the Gender Recognition Bill may perhaps a step in the right direction, Ireland still appears to be well behind its EU counterparts with respect to recognition of transgender persons. Nearly seven years past the High Court ruling on the issue, the State has failed to respond, leaving its transgender citizens on the fringe, and opening itself to heavy criticism from the international human rights community.

Karen Berkeley 

Brophy Solicitors

EU TREATY FREE MOVEMENT RIGHTS AND DISABILITY

We have been working on a number of cases involving recognition of the rights of residency in the State for EU citizens who are unable to work due to disabilities. Such persons are not covered by the terms of Directive 2004/38EC and the European Communities (Free Movement of Persons Regulations) (No 2) 2006. As a consequence of this, the Department of Justice has refused some of our clients a residence card for their family members, on the basis that the EU Citizen is not exercising EU Treaty rights.

We believe that such a decision is unlawful, without provision of an alternative form of indefinite permission to remain, because it discriminates against EU citizens solely on the basis of disability. It discriminates against an EU citizen with a disability who has exercised free movement in favour of those EU citizens who have exercised EU free movement to Ireland, but who are not disabled and can therefore comply with the conditions of the Directive and Regulations to acquire a permanent residence card for their family members. 

We believe that persons with disabilities are entitled to exercise free movement rights in the same way as a person without disabilities. We believe that the right to move within the EU, and to the company of one’s family members, are fundamental rights, and the State has an obligation to adhere to these rights, which derive directly from the Treaty of the Functioning of the European Union and the Charter of Fundamental Rights. 

The position of person’s with disabilities is now protected under EU law by the Convention on the Rights of Persons with Disabilities, which came into force on 3rd May 2008. Ireland signed the CRPD on 30th March 2007 and intends to ratify it.

Karen Berkeley 

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

SUMMARY OF THE INIS POLICY DOCUMENT ON NON-EEA FAMILY REUNIFICATION (Published December 2013)

Addressing the need for more comprehensive and transparent guidelines to assist both applicants and decision makers in the area of family reunification, the Policy Document on Non-EEA Family Reunification, released by the Department of Justice in December of 2013, aims to make clear how the State intends to deal with family reunification cases. The document does not create or acknowledge any new rights of family reunification, however it does present a series of proposals aimed at improving the family reunification process. Here we have summarized some of the more significant proposals as well as the current policies outlined in the document with respect to application processing, the qualifications of a sponsor, dependency requirements, eligibility requirements for spouse, civil partner or de facto partner, elderly dependent parents, and applications for parental migration on the basis of Irish citizen children.

Proposed Changes to Family Reunification Application Processing

The document proposes administrative changes in consolidating the processing of family reunification applications and appeals within the INIS. 

The document proposes the establishment of a preclearance facility for family reunification applications, requiring all applications to be submitted to the facility from overseas rather than upon arrival in Ireland. This would involve a standard application form and fee and the establishment of a central specialist family settlement unit where all applications would be referred. This standardized system would place visa required and non-visa required applicants on a level playing field and work to ensure transparent and consistent information gathering for both officials and applicants. It would also aim to address issues arising from the lack of certainty for applicants applying from within the country who only have ninety days to complete the process. Further, the document states the intention to discuss the addition of language and cultural knowledge requirements for applicants at all levels of immigration.

Second, the document proposes the establishment of a statutory appeals system through provisions in the Immigration Residence and Protection Bill. Once in place, applications for family reunification will be incorporated.

Lastly, the document proposes to provide specific immigration permission for children under the age of 16 to be registered on an administrative basis (not currently allowable under the 2004 Immigration Act) which will allow them to establish personal resident history at an earlier date.

Qualifications of a Sponsor 

Currently, those eligible to be sponsors in the family reunification process include a:

• An Irish citizen residing or intending to reside in Ireland
• Lawfully resident foreign national as an Employment Permit Holder 
• Lawfully resident foreign national with an immigration Stamp 4 , including Long Term residents 
• If Stamp 4 holder is a refugee or a person granted subsidiary protection, this also applies 
• Lawfully resident foreign national with an immigration Stamp 5
• Researcher under a hosting agreement
• PhD student studying for a doctorate accredited in Ireland
• Minister of Religion with an immigration Stamp 3

With respect to these qualifications, it is proposed that sponsors will additionally have to achieve minimum levels of earnings prior to being eligible to sponsor a family member. These will be set at a cumulative gross figure of €40,000 over three years where the sponsor is an Irish citizen and a higher level where the sponsor is a non-EEA national. Social welfare payments will not be reckonable as earnings for this purpose. This requirement would also increase where an application is made for a dependent elderly parent.

Further, the document proposes to adopt a streamlined approach to residency requirements for non-EEA sponsors, with highly skilled workers, entrepreneurs, researchers and others able to apply immediately for family reunification. A 2 year waiting time is applied in cases of certain other categories.

Dependency Requirements

As defined and further clarified by this policy document, “dependency” means that the family member is (i) supported financially by the sponsor on a continuous basis and (ii) that there is evidence of social dependency between the two parties. The degree of dependency, both financial and otherwise, must render independent living at a subsistence level by the family member in their country impossible if that financial and social support is not maintained. This relationship must also be proven to be pre-existing and sustained prior to creating and submitting an application for family reunification.

Eligibility Requirements for Spouse, Civil Partner or De Facto Partner

Any eligible spouse, civil partner, or de facto partner must be at least 18 years of age. The relationship must be monogamous, freely entered into by both parties, and lawfully conducted and recognized under Irish law. The couple must also demonstrate a clear commitment that they will live together following the outcome of the application as circumstances permit.

For marriages and civil partnerships there is no minimum duration requirement. De facto partnerships are required to prove the existence of a relationship akin to marriage, including cohabitation two years prior to submission of the application.

Entry for the purposes of marriage or civil partnership may also be permitted given a 6 month provision, so long as it can be proven that the union is not for convenience. Similarly, proxy marriages may also be recognized under the same policy if it is demonstrated that the marriage is genuine and freely entered into by both parties and the couple can show that they have met each other in person.

Elderly Dependent Parents

Because the potential financial liability for the State of providing medical treatment to accepted elderly dependent relatives is considerable, the document states “emigration, including that by Irish people, is undertaken with no legitimate expectation of ever being joined by parents” and as such, all cases are approached highly restrictively. 

To address this concern, the document proposes that the sponsor of an elderly dependent relative be required to have earned in Ireland each of the three years preceding the application an income after tax and deductions of no less than €60,000 in the case of one parent, and € 75,000 in the case of two parents. The requirements for dependency outlined previously must also be met in all cases involving elderly dependent relatives. As such, the sponsor must also prove that there is absolutely no viable alternative including the availability of other family members, financial resources, and the movement of the sponsor from Ireland to care for the applicant.

If the application is approved, the document further proposes that the applicant be covered by private medical insurance at above the level of VH plan D or equivalent. The sponsor must also sign a legal undertaking to bear personal and complete financial responsibility for the elderly dependent relative and make detailed provision for their accommodation. Permission of this kind would be regarded as temporary and renewable on an annual basis providing all conditions are met and the accepted applicant will be given Stamp 0 (not reckonable for Long Term residence or Naturalisation).

Irish Citizen Children-Applications for Parental Migration

In cases where parents seek residence in Ireland on the basis of their citizen (minor) child, applications are considered with respect to the contribution the parent’s presence would contribute to the child’s enjoyment of its rights as a citizen and parents cannot claim personal rights of residence merely by their parentage of a minor Irish citizen child. This addressed, the document states that each application is viewed individually, taking into account each family’s specific situation. However, it also states that a series of linked applications, seeking to bring to Ireland both parents and all siblings on the basis of a single minor citizen child would seem to go beyond what is reasonable. This is seen as particularly relevant if the State would be required to provide for the family financially.

Karen Berkeley 

Brophy Solicitors

NOTE ON DEPENDENT – TYPE VISAS

We have recently received a notification from the Irish Embassy in New Delhi that the issue of dependent-type visas is currently ‘being developed.’ 

As a result of this new development, such applications where dependent family members seek to join family members in the State, are being temporarily suspended for a number of weeks pending publication of an appropriate policy. 

Such applicants will possibly have a long delay on their visa applications for family members. We have experienced a range of queries from both non-Irish and naturalised Irish persons living in the State in respect of their family members residing abroad who wish to join them. Such family members are either financially, emotionally or socially dependent on their family member(s) in Ireland. Over the years, we have never seen a policy in place to deal with such applications. It apparently depends on the Embassy handling the dependent –type application. For example an application for a dependant father to join his daughter and her Irish husband in the State through the Beijing based Irish Embassy was said not to exist – the Embassy advised that it would be refused as such application could not be processed. Some clarity on the issue would be a welcome step! 

Sarah Henry

Brophy Solicitors

Naturalisation Rates in Ireland Amongst the Lowest in Europe

According to recent research Ireland has the second lowest rate in granting naturalisation applications in the EU at just 13%. Despite a citizenship regime which is theoretically more inclusive than many other EU states, only Luxembourg has a lower rate and the average rate across the EU (34%) is over two times higher than in Ireland.

In 2008, the Immigrant Council of Ireland published research that highlighted the fundamental extent to which immigration status affects people’s ability to make longer-term plans, participate in Irish society and, ultimately, their successful integration. This point was emphasised in connection with the importance of naturalisation and citizenship for immigrants in the Council’s 2011 ‘Living in Limbo’ report which called for changes to the naturalisation application process to simplify and speed up the process for those who wanted to obtain Irish citizenship.

This year’s report, published by the Migration Policy Group in Brussels, identified several barriers to Irish citizenship for applicants such as the lack guidelines for applicants and lack of clarity and transparency in light of the Minister for Justice and Equality’s absolute discretion regarding citizenship applications. This lack of transparency is worsened by the lack of a formal appeals system and the lack of reasons given in cases of a refusal. The report also notes that the Irish system is one of the most demanding in terms of documentation requirements and also has higher application costs than most other EU countries. Furthermore, despite a commitment by the Minister for Justice in 2011 to reduce waiting times for applicants to 6 months many applications are still taking over a year to complete.

Chief Executive of the Immigrant Council of Ireland, Denise Charlton, said that Ireland’s low rate of citizenship has economic and social implications for Ireland, noting that immigrants who have been naturalised find it easier to integrate with Irish society and “are more often employed, less often overqualified for their jobs, have better housing conditions and have less difficulty paying household expenses.”

Freya Foster

Brophy Solicitors

Domestic violence and immigration law issues brought before Oireachtas Justice Committee

The Immigrant Council of Ireland, as part of the Domestic Violence Coalition, has called on the Government to introduce new laws formally recognising the issue of domestic violence in Irish immigration law. Approximately 10% of the Immigrant Council’s overall caseload involved domestic violence however the Council noted in its submission to the Oireachtas Justice Committee that many victims may not be coming forward for fear that it could impact on their right to remain in Ireland. This fear, coupled with administrative barriers and lack of access to safe emergency housing, can leave people vulnerable to threats, abuse and violence.

In addition to legislative action, the Council called for short term measures to be taken in the form of a coordinated administrative response by the Irish Naturalisation and Immigration Service, the Department of Social Protection and the Health Service Executive. It also welcomed a policy clarification issued by INIS in 2012 regarding the possibility of applying for an independent residency permit for non-EEA nationals who are experiencing domestic violence.

However the Council noted the shortfalls of this guidance, namely its reliance on discretion and the lack of clarity as to what type of status would be granted or the likely processing time for the application. It also cautioned that the €300 fee required for a Garda National Immigration Bureau certificate of registration that is paid after a successful application, was a serious barrier to applicants since many would previously have been financially dependant on their abuser and would therefore struggle to pay the fee. The Council emphasised the importance of continuing social welfare payments for eligible non-EEA victims of domestic violence regardless of the stage of their immigration application and regardless of their current immigration status.

The Council also suggested that the UK experience of introducing and refining a domestic violence concession could provide useful guidance in both the legislative and administrative context. This includes a wide definition of domestic violence, equal application to male and female partners, married and unmarried couples and to opposite and same sex relationships. Fee exemptions, legal aid and flexibility regarding evidentiary requirements were also suggested. Importantly being undocumented should not prohibit making an application as the time taken to appreciate or be advised that there is a remedy available may mean that leave has expired in many cases.

In their submissions the Council also urged the Irish government to sign and ratify the Council Of Europe 2011 Convention on Combating and Preventing Violence against Women and Domestic Violence which has already been signed by 26 members of the Council of Europe. 

Freya Foster

Brophy Solicitors

Changes to Immigrant Investor Programme introduced

Minister for Justice, Equality and Defence, Mr Alan Shatter TD, recently announced changes to the Department’s Immigrant Investor Programme. The scheme is designed to encourage foreign investment and offers residency rights to individuals from outside the EU who have a high net worth. These residency rights are offered in exchange for certain levels of investment in Irish businesses, in Government Bonds, in property (along with bonds) or by way of endowments. 

Since its launch last year, nine applications under the Immigrant Investor Programme have been approved. However Minister Shatter noted that more could be done to attract foreign investment under this scheme. The changes, which took effect on the 15th of July, include a reduction of 50% in the minimum investment for both Government bonds (decreased to €1 million) and Irish businesses (decreased to €500,000). The changes will add payment of education fees for the children of investors as contributions to the level of investment required under the scheme. These changes mean that persons can now avail of the programmes benefits (residency rights in Ireland) with lower levels of investment.

The scheme will be promoted through Ireland’s embassy network and the State agencies involved in the promotion of trade investment and enterprise. Minister Shatter concluded his announcement of the changes by noting that "Ireland is an excellent place to do business and has many advantages in terms of its quality of life for investors and their families. They are very welcome here and will find good business opportunities….[The Immigrant Investor Programme] is a further indication of the Government’s recognition of the role that talented and successful migrants can make to Ireland’s economic development and the contribution they can make to job creation."

Freya Foster

Brophy Solicitors

UNHCR REPORT ON EU ASYLUM SYSTEMS

The United Nations High Commissioner for Refugees (UNHCR) have recently published a report entitled "Beyond Proof, Credibility Assessment in EU Asylum Systems “ on the role of the credibility assessment in determining refugee status. The report focuses on the use of credibility within the Common European Asylum System (CEAS) and is another step towards the UNHCR’s goal of producing updated guidelines on the assessment of credibility of asylum claims.

The CEAS is designed to ensure that an applicant would, in principle, receive the same decision on his or her asylum application regardless of which EU Member State they made their application in. However because the credibility assessment is so often a key factor in determining refugee status, similar cases in different Member States often have different outcomes because the method of assessing credibility differs. For example certain decision makers in one member state may have more discretion or employ a different approach when assessing an applicant’s credibility. 

The UNHCR noted that there is a clear trend in the EU where negative decisions on asylum applications are made on credibility grounds without applying the relevant Qualification and Asylum Procedures Directive. It also noted that there was no common understanding and approach within the CEAS regarding the assessment of credibility and that there was therefore a pressing need for comprehensive and up-to-date guidance for decision makers on how to correctly assess an applicant’s credibility. 

This report does not constitute this guidance it merely seeks to identify and clarify key concepts surrounding credibility and to inform discussion and debate. However it does provide some guidance for decision makers in the form of checklists and flowcharts designed to illustrate how to take into account the various relevant factors (such as education, fear and the impact of trauma) when making a credibility assessment. These checklists emphasise the various duties and obligations of both decision maker and applicant during the course of the asylum application process. In its conclusions the report calls for a more consistent, transparent and principled approach to credibility assessments, based in law and on good practice. It notes the disparity between policy and practice in credibility assessments in member states and calls for enhanced training on credibility for decision makers in order to combat this and to achieve a consistent approach to credibility assessments throughout the CEAS.

The report is available via the following link: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=519b1fb54&skip=0&query=credibility

Brophy Solicitors

4th Annual European Commission Report on Immigration and Asylum

We took some time out this week to review current trends in immigration law amongst the Member States. The European Commission Report confirmed useful statistics and gave us food for thought. The report analyses immigration patterns in Europe and discusses the implementation of the Common European Asylum System. According to the report, there has been a 10% increase in asylum applicants compared to 2011. This increase is partly due to the conflict in Syria, which has displaced huge numbers of Syrian nationals. We have noticed an increase in queries from Syrian nationals who are normally seeking information on family reunification with family members living in Ireland. The report also notes that there are almost twice as many third-country nationals living in the EU compared to the number of EU citizens who live in another member state. Last year, over 300,000 people were refused entry to the EU. 

EU policy on immigration and asylum focusses on a few main areas. These areas include attracting talent from third countries to the EU, efforts to adopt a harmonised, pan-European asylum system and the eradication of human trafficking.

Measures implemented to attract highly qualified professionals to the EU include the adoption of the EU Blue Card Directive, which took effect in 2009. This measure will be reviewed later this year. According to a Commission Communication from 2012, a smarter visa policy could contribute to economic growth. This would speed-up, facilitate and reinforce border check procedures for foreigners travelling to the EU.

The report laments increasing incidents of xenophobic violence, noting that integration of immigrants is essential to the success of policies to attract highly qualified employees into the EU workforce. The report also note that young people with an immigration background are significantly more likely to become ‘not in employment, education or training’ in comparison with their contemporaries. It is also argued that family reunification plays a part in promoting integration. 

According to the report, a Common European Asylum System will lead to fairer, quicker and better quality asylum decisions and special needs of vulnerable people will be better taken into account. This will involve greater protection of unaccompanied minors and victims of torture. The measures are aimed at ensuring fundamental rights of asylum seekers are protected, especially the principle of non-refoulement. 

The European Asylum Support Office, along with the Commission, works to tackle the biggest obstacles to solidarity. These obstacles include the Greek National Action Plan on Asylum and Migration, increasing numbers of Syrian refugees seeking asylum in Europe and the relocation of beneficiaries of international protection within the EU. 

The report also looks at the measures being taken to eradicate human trafficking from third countries. The report notes that victims from outside the EU mainly come from Nigeria and China. The Commission launched the EU Strategy towards the Eradication of Trafficking in Human Beings in 2012. 

With regards to tackling irregular immigration, the report notes that bodies are working to tackle this at pressure points, including the Greece-Turkey border. Efforts are also under way to implement a common returns policy for irregular immigrants.

Brophy Solicitors

BROPHY SOLICITORS IS PROUD TO SUPPORT THE IRISH REFUGEE COUNCIL’S FUNDRAISING EVENT TO MARK WORLD REFUGEE DAY

On Saturday 22nd June the Irish Refugee Council is hosting a fundraising evening – a medley of entertainment featuring music, prose, art and poetry. The event, which will be held at the Unitarian Church on Stephen’s Green, will come at the end of a week of activities across Ireland and beyond marking World Refugee Day which is on June 20th. 

A variety of artists from the Nigerian, Iranian and Sierra Leonean communities among others, and from Ireland, along with a number of young people performing their own composition with headliner Ben Okafor will take the stage. 

Tickets are €20 with a limited number available to students and the low-waged at a reduced price of €10. Funds raised will go towards supporting the work of the Irish Refugee Council and in particular, our work with young people seeking asylum in Ireland.

The event will commence at 7.30pm and all are welcome.

Sarah Henry

Brophy Solicitors

IT’S OUR RIGHT TO MARRY! IRISH REGISTRARS CONTINUE TO WRONGLY REFUSE COUPLES THEIR RIGHT TO MARRY

In a short space of weeks, we received a number of complaints from aggrieved clients who, having served their notification of intention to marry, were refused permission to marry by local registrars. The cases concern EU nationals and their non-EEA partners who contacted us in a state of distress and anxiety having been advised that an objection to their marriage was raised and that their marriage would not be going ahead as planned. 

In 2011 we issued proceedings regarding a similar situation involving an EU national and her husband who suffered sheer humiliation and deep distress when an objection was lodged in respect of their marriage on the morning of their wedding!! The bride and her husband-to-be were just about ready to commence celebrating their marriage before family and fiends, many of whom had flown to Ireland from abroad for the occasion. But the actual marriage took place months later following a court settlement resulting in the objection being lifted. Their day was ruined and their financial loss was significant. 

Two years later we see the problem arising again although we managed to tackle this head on without resorting to the High Court. Our clients were advised that under the provisions of section 51(2) of the Civil Registration Act, 2004 that a registered solemniser shall not solemnise a marriage unless he/she is satisfied that the parties to the marriage understand the nature of the marriage ceremony and the declaration that they accept each other as husband and wife. In this case the registered solemniser was not satisfied that our clients understand the nature of their marriage ceremony and the declarations that they accept each other as husband and wife and you felt that an ‘offence’ may have been committed under section 51(2). An Garda Siochana were notified and asked to investigate a possible offence under this section. Which offence was the registrar referring to? This section does not refer to any offence that would have been applicable to our clients. The legislation as it stands does not cover any offence indicated by the Registrar. 

The situation was previously fleshed out in court by Justice Hogan in Izmailovic & Anor -v- Commissioner of an Garda Siochana & Ors [2011] IEHC 32 when the marriage of a couple was intercepted by the State and the groom arrested on the grounds that the Gardai believed his marriage was one of convenience. Justice Hogan concluded as follows: ‘ I quite appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory, then it is, of course, in principle open to the Oireachtas and, if needs be, the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult ones and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and, again if needs be, the Union legislature can resolve.’ 

Following a detailed complaint sent to the Registrar on behalf of our most recent clients in this matter, the objection was quickly lifted and they are free to marry. Although delighted with the outcome, the stress and anxiety suffered by our clients was considerable and is something they now want to put behind them. 

Sarah Henry

Brophy Solicitors

Delays on Issuing Temporary Stamp 4 and EU FAM Five-Year Cards

We have noted considerable delays within the EU Treaty Section which is a cause for concern for many of our clients. Rather than decisions on their applications after 6 months, some have received temporary two month visas and a request for further documents! Original documentation was always returned rather promptly but we have daily requests from clients seeking the urgent return of important documentation which remains with the Department for several weeks. We hope that matters proceed as normal and within reasonable time frames as soon as possible as such delays cause genuine problems for clients who wish to travel, work and maintain their employment in the State.