BURDENSOME PROCESS FOR REGISTRATION OF ZAMBRANO CASES

We recently posted about a family residing in Saudi Arabia who was granted permission to enter and reside in the State on the basis of their Irish Citizen Child.  On appeal of their first application which was refused for a number of reasons, we challenged the deciding officer for failing to consider the rights of the European Citizen Child in line with the judgement in Zambrano.  Ultimately the family was granted D Type visas to enter the State.  Upon their arrival, immigration officials at Dublin Airport provided the family which consists of a mother, father and three young children with a one month permission to remain.  The family was directed to register their status with the Minister for Justice and Equality and this was done almost immediately through our office.  

The family have commenced life in their new home.  They found accommodation and the children have been enrolled for the 2012/2013 school year.  The father, who is highly qualified in his chosen field, has been provided with the opportunity to work.  He is unable to do so at present without providing evidence of a Stamp 4.  He is also aware of the fact that the delay in the determination of so called ‘Zambrano’ type cases is considerable. 

We understand that there are two systems in place regarding D Type Visas – i.e. the pre-clearance visa is granted which is followed by the requirement of registering your permission to remain in the State by obtaining the appropriate Stamp on one’s passport and a ‘GNIB card.’  We informed the State that we are aware of two cases based on ‘Zambrano’ pending for over 12 months from this office alone. The INIS website states that ‘legally resident non EEA nationals who have entered the State with the intention of residing for more than three months must register with their local immigration registration officers.’   It seems that our clients, like many others such applicants, are subject to further examination after having been granted a long –stay visa.  They have been requested to make an application to the Zambrano Team in the Department of Justice and Equality which could take up to a year or more to decide.  Again, they must submit all of the documentation already forwarded to visa officials twice.  We were also advised that a temporary Stamp 4 while their application is pending is out of the question.  

The INIS website also provides that ‘the onus is on all Non EEA nationals to keep their residency up to date at all times while they are in the State.’  It is infuriating that our clients and similar families would leave their homes and jobs to relocate to Ireland. They make preparations to continue family life in Ireland based on having obtained long-stay visas to enter the State only to find that in fact they cannot avail of employment and are liable to become undocumented for a long period of time.  The State advised us that unfortunately it is the case that a person’s permission might expire during the determination of an application for residency but nothing can be done about this.  We believe that this is a very serious problem. It is unfair that a country would facilitate a person with a long- stay visa to enter the State only to allow that person to endure a painstaking wait to actually register permission to remain. 

If the State continues to operate in this manner, it should at least allow for temporary permission to issue to those who are lawfully resident in the State and risk becoming undocumented while the Minister decides their application.  The UK Home Office have operated such a system for all Zambrano applicants since the judgement itself was delivered.

We would ask the Minister what is the point of carrying our a full assessment of the Irish citizen child’s rights of residence  from outside the State, when on arrival, the full assessment must be carried out again? If the family visa are granted to enter the State,  why are the child’s  parents,  granted a temporary permission to stay as visitors for one month only,  when the residence application may take over one year to determine? How is this family supposed to support the child in the intervening period? Without lawful permission to reside, applicants become vulnerable, restricted in their proper enjoyment of family life and risk huge financial problems.  Zambrano cases are child focused but yet the Department of Justice’s policy is wholly adverse to the best interest of that child.  

Brophy Solicitors

24.08.12

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

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

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

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

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

Brophy Solicitors

04.05.12

ZAMBRANO: STAMP 4 AND EDUCATIONAL SUPPORT

We contacted the Department of Justice and Equality recently in respect of a number of queries raised regarding entitlements to education support for non nationals resident on Stamp 4 Status.

Many persons residing in Ireland are eligible for an ‘Immigration Stamp 4’ which, according to the Minister’s Office, entitles the holder to work without need for an employment permit but does not confer an entitlement to any particular public service or funding as such matters are determined by the relevant government departments or State agencies.   One of our clients has been granted a Stamp 4 for one year based on discretionary Humanitarian Leave to Remain.  She is also the mother of an Irish citizen child and wants to apply for a Stamp 4 pursuant to Zambrano as the policy operating from the Department generally provides for a Stamp 4 for three years. She intends to enrol in a Third Level Education Scheme under which she will be eligible for free fees based on her current status in the State.  However, the eligible categories of stamp holders entitled to avail of such a scheme do not yet specifically cover ‘Zambrano’ type Stamp 4 holders. 

We contacted the State in an attempt to ascertain information on whether or not our client would be entitled to continue to be eligible to avail of free fees under Stamp 4 (Zambrano).  The Minister advised that the Department has no function in matters relating to educational supports and that this issue will be a matter for the Department of Education and Skills.

We have however been informed that the Department of Justice and Equality has set up a dedicated email enquiry database under which education grant awarding bodies can submit queries in relation to the immigration status of their applicants.  Such information is not entirely useful to our client but it would be worth contacting the Department of Education and Skills if you are concerned that your stamp might not entitle you to access educational support. 

We believe that persons who have been granted permission to remain in Ireland to care and support their Irish citizen children, should not be treated any less favourably in terms of accessing services or public funding in respect of education, than those who have been granted permission to remain on humanitarian grounds. There is potential for great confusion as to the type of residency permission that is conferred on a person who is entitled to reside in the State pursuant to Zambrano, a decision that issued from the ECJ relying wholly on the Treaty on the Functioning of the European Union. 

Brophy Solicitors

18.11.11

ZAMBRANO UPDATE

 APPLICANTS FROM OUTSIDE THE STATE

We have made a number of applications for fathers of Irish citizen children residing outside the State to join their Irish citizen children in Ireland.  The procedure necessarily involves an application to the appropriate Irish Embassy for a long-stay visa to enter the State.  The delays on such applications have already been considerable and yesterday we received  notification from an Irish Embassy confirming that because we had raised ‘Zambrano type submissions,’ in our application for a long-stay visa for the father of an Irish child, the matter would be sent for ‘further investigation’ to the offices of the Department of Justice and Equality in Dublin.   The note concluded that as there have been large numbers of applications submitted in light of the Zambrano judgement it may be some time before there is a decision on these cases.

It therefore appears that Visa Offices outside the State are taking roughly two to three months to review applications before sending the same application for further investigation to Dublin.  We have been told by the Visa Office in INIS that they will take a further 2 months to conclude their investigations, but in reality are taking longer again. Surely this delay is unjustified!

We might remind the Minister about his Statement he released on the 27^th April 2011.  We include the link<http://www.inis.gov.ie/en/INIS/Pages/PB11000004> to this Statement but you will find that it has expired as the statement has been removed from the INIS website.  Luckily we saved a copy of the Statement on our files.   Parents of Irish citizen children ‘outside the State’ were listed as one of the definitive eligible categories of applicants designated by the Minister following the Zambrano decision.  The Minister was very clear in his note below that applicants outside the State should apply to a local Embassy/Consulate and provide documentation showing a ‘clear link to the Zambrano judgement.’  It appears that problems have arisen within the Department concerning this category of applicants and further information has not been provided to date.

It is interesting that Department subsequently (some time around the 12^th July 2011) released revised guidelines in respect of eligibility for “Zambrano Applications”. See the following question and answer currently posted on the INIS website (http://www.inis.gov.ie/en/INIS/Pages/WP11000038);

Question 3

“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

This statement appears to be in direct contradiction to the Minster’s earlier statements in April 2011. We regard the position to be somewhat different to the Minister’s current very restrictive interpretation of the Zambrano judgement. We submit that the rights upon which a parent of an Irish citizen can rely arises from the Treaty of the Functioning of the European Union, including in particular Article 18, Article 20 and Article 21. We would highlight that while the ECJ cases such as Zambrano and Zhu and Chen are certainly very relevant to the Applicant’s situation, the judgements are not in themselves the primary source of law upon which the Applicant relies - which is the Treaty of the Functioning of the European Union.  We submit therefore that the Minister’s apparent exclusion of the parents of Irish citizen’s not resident in the State is not in accordance with EU Law.

We continue to submit applications for visa/residency for parents outside the State who wish to join or re-join their Irish citizen children residing in the State.  It is unfortunate that many of these applicants were deported shortly before the Zambrano decision came through.  They have now spent several months apart from their families with the prospect of now having to wait for a further considerable period until their applications have been decided.  We call upon the Minister to immediately review his position in light of his earlier comments.

Brophy Solicitors

24.08.11

REGISTRATION OF NAME ON BIRTH CERTIFICATE

PRACTICE NOTE ON REGISTRATION OF FATHER’S NAME ON BIRTH CERTIFICATE

We receive many queries regarding the registration of a father's name on the birth certificate of an Irish citizen child where the couple is not married. We can summarise the procedure as follows:

If the mother of the child is married to someone else other than the father of the child, her husband must complete a statutory declaration to state that he is not the father on form CRA 7 available from the Registry Office.

Alternatively, the mother must complete a statutory declaration stating that she is divorced, judicially separated or living apart under a decree of nullity for more than 10 months prior to the birth of the child.  She must accompany form CRA 8 with a court order i.e. a Decree of Divorce.

If neither of these options suit, an order from the court may be submitted by the mother or the father naming him as father of the child, in respect of an application for Guardianship/Maintenance or other application under the Social Welfare Act. Form CRA 5 is used by the mother of the child and Form CRA 6 must be used by the father. 

Some of our clients have been advised to apply to court for guardianship prior to registration of the father’s name on the child’s birth certificate in cases where the mother remains married to someone else, but has no contact with her husband. If she was in touch with her husband and he was willing to assist, we were advised that she could arrange to have form CRA 7 sworn by her husband, attend the Registry Office with the father of the child who must produce his passport and registration would proceed.

Where the parents of the child are not married to each other and wish to include the father's details where these were not included before, the couple should make enquiries directly with a Registrar of Births, Deaths & Marriages. The Registrar will advise you as to what documents and information will be required. We contacted the Dublin Registry Office and in cases where the mother is not already married it appears that both need to produce passports and attend for a meeting with the Registrar. 

Difficulties will obviously arise if the father is unable to produce his passport for registration.  We have advised some of our clients that the best way forward in these cases is to apply for guardianship before the courts prior to registration.  We have sought the return of passports that have been held for several years with the Garda National Immigration Bureau in cases where the client is the father of an Irish citizen child. 

You can contact the General Register Office for more information.

http://www.groireland.ie/

     Brophy Solicitors
     12.08.11

ZAMBRANO UPDATE

 POSITIVE DECISIONS IN ZAMBRANO APPLICATIONS 

We are happy to update you that the Minister is now granting permission to reside to the “Zambrano” cases which are currently before the High Court. These are the cases which involve challenges to the deportation orders issued against parents of Irish citizen children. Following the European Court of Justice decision in the case of Zambrano v. Office national de l’emploi, Case C-34/09, 8^th March, 2011, all these cases were transferred into a separate list in the High Court, which has been called  “The Zambrano List”. When these cases were last listed in court, the Minister undertook to contact each of the Applicants prior to the 25^th July 2011 to confirm the Minister’s position on their respective cases.  Recently, we have received a number of correspondences indicating that the Minister is now revoking the deportation orders against these applicants, on “exceptional grounds”, and granting a three year period permission to reside. This permission to reside is subject to the condition that the applicant obey the laws of the State, do not become involved in criminal activity, make every effort to gain employment, not become a financial burden on the State and play an active role in the Irish child’s life. We very much welcome these positive decisions.

Karen Berkeley, Brophy Solicitors

20.07.11

Zambrano Update

POSITIVE RESULT IN ZAMBRANO TYPE CASES

We were delighted to receive positive news from the Department of Justice, Equality and Defence in the last week in respect of some of the recent Zambrano applications we have submitted. The approval letters have indicated that the Minister is granting permission to remain of a three year duration.

However, in one such case,  our client was granted permission to remain in the State and work for five years.   This client was the subject of a deportation order affecting her removal to South Africa along with her nine year old daughter who is also a South African national.  Our client was notified that a deportation order had issued against both she and her non-Irish child in August 2010.  When she initially joined her husband in the State she was granted permission to remain for a short period and was advised by her local immigration officer to apply to the Minister for Justice to extend such permission to reside with her husband and children in the State.  She received no response to her residency application and later instructed a solicitor to apply for leave to remain.  This application was ultimately refused.  She had however, not been served with the signed order that the Minster intended to deport her with her South African child.  Throughout her time in the State she avidly contacted her local TD who raised her case during a parliamentary debate as she and her family had no idea about what was happening with their case.   After discovering there had been a deportation order made, she continued as required, to attend the Garda National Immigration Bureau who had also seized her passport.  She was certain that she and her daughter would be removed from the State at any stage and such uncertainty caused her family great stress and anxiety.  She is the main carer for her Irish son and her daughter while her husband worked to support the family.  

We welcome the Department’s decision to fully implement the ECJ’s decision in ‘Zambrano’ in granting Applicant’s the right to work and reside in the State on the basis of her citizen child. 

The prospect that families may be forced to separate or leave the State is a very stark choice for many parents of Irish citizen children, but prior to the Zambrano decision, this was an unfortunate reality. We are pleased to be having successes in this area and are working on a number of cases that rely on the Zambrano principles beyond the narrow application to parents of minor Irish citizen children, which we will keep you updated on.

Sarah McCoy, Brophy Solicitors

27.05.11