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

DIRECT PROVISION – URGENT CHANGE NEEDED

There is an urgent need for change in Ireland’s asylum system. As it currently stands, asylum seekers must wait in direct provision centres while their application for refugee status or subsidiary protection status is pending. Direct Provision was originally introduced as an emergency measure in 1999 and was only supposed to last for 6 months. Indeed, the reaction to this change from asylum seekers is observable - in 2000, there were 10,938 new applications, while in 2013, there were 946.

Currently, there are around 6,000 people living in Direct Provision accommodation centres. Because of the poorly structured application procedures, 59% of current applicants have been in this system for over three years and some have been there for over 6 years. The hardship of long periods of time living in Direct Provision is aggravated by the general poor standards of accommodation and lifestyle associated with these centres. The recent Economic and Social Research Institute report on Direct Provision notes a lack of privacy, overcrowding, a lack of facilities for children, and a lack of autonomy. The lack of autonomy with specific regard to food and the lack of exercise facilities mean that physical health problems are widespread. Mental health problems such as anxiety and depression are also common.

Internationally condemnation 

In fact, the Direct Provision procedure has received international condemnation. The Balseskin Reception Centre in Dublin has been condemned as inadequate for its conditions by the Council of Europe in a report on trafficking. Women and children who have been sexually exploited and abused are held in mixed gender centre, which may aggravate their trauma. 

The matter was raised in the High Court of Northern Ireland in Belfast, where the concern applicants were asylum seekers who applied for asylum in the Republic of Ireland but subsequently travelled to Northern Ireland. Mr Justice Stephens noted the poor treatment asylum seekers in Ireland experience, in particular, the absence of permission to work, the low allowance and widespread health problems. He found that the conditions of the centres were contrary to the best interest of the child [In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88(14 August 2013)].

Can change happen?

It seems as the government are satisfied with the poor standards associated with Direct Provision centres, as it operates as a deterrent to asylum seekers who may wish to claim refuge in Ireland. Fine Gael TD Charlie Flanagan said during Prime Time in January that it should be ensured “that Ireland is not an attractive place for applicants”, so the State would not become overburdened. Elsewhere, the Former Minister for Justice Alan Shatter has also defended direct provision on cost grounds. 

Thus, it is clear that if an alternative system were going to be considered by the government, it would have to be equally economical or even cheaper. While the €19.10 per adult and €9.60 per child is easy to calculate, it is harder to put a monetary value on the mental health issues that asylum seekers experience resulting from the lack of autonomy in the centres, or perhaps the insensitivity to victims of gendered crimes. This sanctioned ill-treatment of those who have not committed any crimes and who have already suffered enormously can no longer continue and be justified on cost effectiveness grounds. The government needs to be conscious of what legacy it wishes to leave behind on its treatment of asylum seekers.

Ciara Dowd
Brophy Solicitors

SUMMARY OF KAREN BERKELEY’S SPEECH 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 2014.

Mr Uustalu was granted the first declaration of statelessness in Ireland by the Minister for Justice in March 2014. Mr Uustalu is from a town located in Estonia, which, at the time of his birth, was in the territory of the USSR. In 1991, Estonia became an independent state and Mr Uustalu was issued an “Alien’s Passport”, identifying his citizenship as undefined. He was entitled to apply for Estonian citizenship, however, this entailed the applicant to pass an Estonian language exam, which Mr Uustalu and his parents, as Russian speakers, would have been unable to pass. 

Mr Uustalu first came to Ireland in 2002 and unable to acquire lawful residence status as a stateless person because of the lack of such a procedure. Unable to leave the state since then, because his “alien’s passport” expired, Mr Uustalu made an application for a stateless travel document last year. This failed because he could not provide a declaration from the Minister confirming his stateless status. Subsequently, there was an application for this declaration made under the 1954 Convention, but this application was unanswered. This led to high court proceedings seeking a declaration that the failure by the State to have in place a procedure by which Mr Uustalu could apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constituted a breach of his rights and the State’s obligations under the 1954 Convention relating to the Status of Stateless Persons. A few days before the hearing, the proceedings were settled and Mr Uustalu was issued with the first declaration of Statelessness in Ireland.

The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons. This is the principle international instrument to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms. Article 1 of this convention defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition describes a particular type of statelessness, which is characterized by the formal lack of nationality, this is known as “de jure statelessness”. There are also persons who are “de facto stateless”, that is, people who formally hold a nationality but experience the associated problems with statelessness because that nationality is ineffective. The Convention also distinguishes between non-refugee stateless persons and a stateless refugee. 

A declaration of statelessness is important because this recognition by a State provides a person with a legal status and basic entitlements, including a right to work and travel, among others. If a person is stateless without formal recognition, they will not have any legal protection or automatic rights to healthcare, education and employment, which puts them at risk of exploitation. 

 

The assessment of stateless status is complicated because of an overlap between statelessness and refugee status, and also the sometimes unclear distinction between de jour statelessness and de facto statelessness. The Convention does not provide for specific procedures for the assessment of statelessness.

For a fair and efficient status determination procedure, there must be a clear and transparent legal framework, access to legal advice and information and an effective appeal system. Decisions must be made in a timely manner and there should be a provision of accommodation and welfare through the determination process. A stateless person who also has grounds for asylum is not eligible for protection under the 1954 Convention , thus, the application for asylum must be considered first.

Ireland has failed to meets its obligations under the 1954 Convention, as there exists no formal procedure for determination in stateless. The few applications that have been made for recognition of stateless status have been made as submissions included in an asylum application, submissions included in an application for humanitarian leave to remain and sometimes as submissions at the deportation stage when it emerges that an applicant has nowhere to be deported to. Though some persons have has their stateless status recognized by ORAC and the Refugee Appeal Tribunal, the Minister has not afforded them the declaration to recognize their stateless status. Therefore, unless the stateless person can fit their case successfully in the asylum application process, or acquire legal status through other means, they are left in a legal limbo. 

The Irish State has, however, has implemented some of the derivative rights for stateless persons found in the Convention, such as application procedures for stateless travel documents and procedures for naturalisation of stateless persons. Yet, these are meaningless unless the applicant can be formally recognised by the State as stateless.

With the proposed introduction of the single procedure to the asylum application procedure, it is necessary to include stateless persons in this discussion. It is crucial that a durable solution for stateless people is put in place now. If there are to be further long delays in the creation of the single protection procedure, than a temporary procedure must be implemented for Stateless persons imminently. It is now imperative to address the failings of the Irish State to date to fulfill the obligations under international law by setting up a legal framework in which stateless persons can access a declaration of their status and the rights which accrue from this. 

I wish Nasc, the Immigrant Council of Ireland and the UNHCR the best of luck in their current campaign to ensure that stateless persons do not continue to be ignored in this way.

Karen Berkeley
Brophy Solicitors
 

WORLD REFUGEE DAY

World Refugee Day is taking place on the 20th of June. This day aims to draw attention to hardship faced by the millions of refugees who are forced to leave their homes as a result of conflict and persecution. World Refugee Day also aims to commemorate the cultural contribution that refugees make to societies around the world. There are events held worldwide to celebrate the courage, resilience and strength of refugees and the solidarity of the countries that assist in providing asylum. There are many events taking place in Ireland to commemorate this day.

 

Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law are hosting a conference to mark World Refugee Day from 10am to 3pm. The conference is titled Beyond the Single Procedure: Reforming Ireland’s Protection System, and will include speakers from the United Nations High Commissioner for Refugees (UNHCR), various refugee support agencies in Ireland, legal practitioners working in the area. Karen Berkley from our office will be speaking on topic of Statelessness. The conference will serve as a forum to discuss the refugee protection in Ireland and the impact of the pending reforms. To attend this event, please contact Bethany Wynee-Morgan on Bethany@nascireland.org. 

 

The Irish Refugee Council are holding an event at Studio Six, Temple Bar Gallery, Dublin 2 at 6pm with guest speak Geoffrey Shannon, Special Rapporteur on Child Protection. The success of the Irish Refugee Council’s Advocacy programme will be discussed in light of the launch of its evaluation and resource guide for service providers working with separated children. To attend this event, please RSVP to caroline@irishrefugeecouncil.ie. 

 

The UNHCR has organised a book-reading campaign with libraries and bookshops across Ireland, beginning the 16th of June. This campaign will draw attention to books that are based on experiences of refugees, such as The Kite Runner, which will in turn educate both children and adults on the devastating impact of war on families.

 

 

UNHCR and Sport Against Racism Ireland are holding the event “The Fair Play Cup, Celebrating World Refugee Week” at the Law Society Gardens, Blackhall Place, Dublin 7. This event will draw football players from refugee and community groups and aims to highlight the positive experiences of refugees in Ireland and draw attention to the plight of refugees worldwide.

 

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

EU TREATY RIGHTS – “CONTINUOUS PERIODS OF RESIDENCE” FOR PERMANENT RESIDENCE APPLICATIONS

The opinion of Advocate General Bot was delivered on the 14th May 2014 in response to the Irish High Court’s request to the Court of Justice for a Preliminary ruling in the case of Ogieriakhi v Minister for Justice and Equality, Ireland, (Case C‑244/13) available here. 

The Irish High Court requested the Court of Justice, to clarify the notion of ‘continuous legal residence with the Union citizen’ for the purposes of Article 16(2) of Directive 2004/38/EC and, more specifically, to clarify the words ‘with the Union citizen’.

The case concerned the application of Mr Ogieriakhi, a Nigerian national, for a permanent residence card based on his marriage to Ms Georges, a French national. The couple married in May 1999, and cohabited until August 2001 when their relationship ended. During the period from October 1999 to October 2004, Ms Georges was either working or claiming social security payments. They were divorced in January 2009.

Mr Ogieriakhi was refused his application for a permanent residence card and his subsequent case in the High Court was dismissed on the grounds that the 2006 Regulations did not apply to residency which pre-dated their coming into force in January 2007. Following an appeal to the Supreme Court, Mr Ogieriakhi was granted a right of residence by the Minister for Justice in November 2011, on the basis that he satisfied all the relevant conditions specified by the 2006 Regulations. Mr Ogieriakhi then commenced the main proceedings to the Court of Justice in which he is sought damages against Ireland for breach of EU law. In particular, he had lost his job because of the Minister’s refusal to grant the residence card. 

In summary, Advocate General Bott found that a third-country national spouse of a Union citizen who has exercised a right of free movement may claim a right of permanent residence where the couple lived under the same roof for only two years and for the remaining three years they agreed to live apart with different partners.

Also, for the purposes of a permanent residence card application pursuant to Article 16(2) of Directive 2004/38/EC, a third-country national spouse of a Union citizen may rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

We now await to see if the Court of Justice will follow this opinion of Advocate General Bot.

Karen Berkeley 

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

INIS ISSUES NOTICE REGARDING CESSATION OF REGISTRATION FOR STUDENTS LINKED TO CERTAIN COLLEGES

A new notice on the INIS website indicates as follows:

“Following on from serious allegations regarding the practices of some Colleges which offer English language education to non-EEA national students, INIS and the GNIB have suspended the issuing of visas and residence permissions to non-EEA nationals seeking to enroll as new students with the following institutions.

• Eden College

• National Media College (formerly New Media College)

• Millennium College

• Business & Computer Training Institute

This suspension is pending further inquiries into the allegations of irregularities and further action may follow.”

Since 1 January 2011 a ‘New Immigration Regime for Full Time Non-EEA students was introduced by the Irish Naturalization and Immigration Service to set out new rules regarding studying in Ireland for non-EEA students. The guidelines require that Non EEA students studying language courses can stay in Ireland up to three years if they are studying a minimum of 15 hours a week, and have access to 3,000 in addition to course fees and health insurance. They are also required to evidence 80% attendance in order to obtain a renewal of their residence permission. Guidelines for the colleges were also provided at that time.

The notice on the INIS website follow reports in some of the Irish newspapers that some colleges were fabricating students attendances in order to facilitate the issuing of their student residence permissions.

The Irish Independent today states that Mr Rezaul Haque, who is the chief executive officer of Millennium College, indicated that his college was not guilty of any practices that would warrant suspension of the issuing of visas and residence permissions and he was "confident that everything will be sorted".

http://www.independent.ie/lifestyle/education/immigration-authorities-launch-visa-crackdown-on-schools-30190044.html

We would highlight to students who are attending the named colleges that the above notice applies only to those seeking to enroll as new students, and not those who are already enrolled in such courses. We trust that those students already enrolled and attending courses in the named colleges will be permitted to complete their course under the normal student conditions.

WHAT IS THE MINISTER’S POLICY REGARDING THE STATUS OF NON EEA CHILDREN IN THE STATE?

Last year, a client of our office attended GNIB with his wife and son to obtain re entry visas prior to their holiday outside the State. To his shock, our client was informed by both a GNIB officer and an official from INIS that his son was not legally resident in the State, and on this basis he was refused a re entry visa for his son. As such, our clients were unable to travel as planned, and lost the substantial value of their flights. Of more concern to them was the fact they were informed that their son should leave the State immediately, and apply for a visa to enter the State from outside the State in order to regularize his status. 

The Minister’s current immigration policy is that children cannot independently register their status in the State until they are 16 years of age. It has been confirmed to us by INIS on a number of previous occasions that children assume the lawful status of their parent/s until they are 16. If this is the correct position, it appeared clear to us that our clients’ son was in fact lawfully resident in the State, and had at that point acquired over three years of reckonable residence. We calculated his reckonable residence on the basis of his mother’s stamp 3 residence permission, as he entered the State with his mother and resided continuously with his mother in the State. However, why was he refused the re entry visa? The glaring problem was that the Minister’s lack of policy in respect of the status of non EEA children in the State is causing utter confusion, not just for the public, but within the Department and GNIB also. 

Eight months after we first took our client’s instructions , and after numerous letters from our office and threats of High Court proceedings, the Department finally clarified in writing that non EEA children who enter the State accompanied by a parent are deemed to be in the State on the same conditions as the accompanying parent, and they are deemed to have dependant status on that parent. On this basis it was confirmed that our client’s son was eligible for a re entry visa. However, our clients were not reimbursed for the lost expenditure incurred because of that earlier mistaken decision to refuse the re entry visa. 

The lack of clear stated policy regarding the status of children in the State is a huge failing within the current immigration system and urgently needs to be addressed. Many cases concerning children are treated at odds from each other by different GNIB and INIS officials. It is impossible for our clients to understand what are the requirements to have their children’s status regularized and accounted for in terms of reckonable residence. Are they to present their children at GNIB on arrival? What if one parent becomes undocumented, does the child’s status shift and align with the second parent who is undocumented? What status does the child acquire on turning 16? From our experience, some children acquire stamp 2 permission, and some stamp 3 permission. Both residence permissions are unsuitable once the child turns 18, and wishes to attend third level education or become employed on a full time basis.

The current unclear position on the status of children in the State is breach of the Minister’s obligation to apply good administration, and causing unnecessary and unfair hardships for many families. The area requires the Minister’s urgent attention.

Karen Berkeley 

Brophy Solicitors

ATYPICAL WORKING SCHEME

We have recently dealt with a number of queries that relate to the applicability of the Atypical Working Scheme. 

This scheme was introduced on the 2nd of September 2013 as a pilot scheme in agreement and cooperation with the Department of Jobs, Enterprise and Innovation. The scheme is under the remit of the Department of Justice. 

We understand that the Atypical Working Scheme was introduced in order to facilitate work permission in circumstances where applicants did not fit squarely within the work permit criteria. The principal circumstances where an applicant may be eligible include the following: 

• where an applicant is seeking to undertake a short term contract work where a skills shortage has been identified;
• where an applicant is providing a specialised or high skilled to an industry, business or academic institution;
• where an applicant is seeking to take up trial employment in respect of an occupation on the highly skilled occupations list;
• where an applicant is seeking to take up a paid internship. 

These circumstances are not exhaustive and we understand from our own enquiries that the scheme has a degree of flexibility to facilitate non-EEA workers who have secured employment in the State but do not fit within the perimeters of the work permit schemes. We understand that permission is not generally granted for upwards of a 90 day period.

Perspective applicants are invited to contact the scheme directly to check whether or not their particular circumstances may fall for consideration under the scheme. 

Applicants should be aware that there is a non-refundable application fee of €250 and that a designated application form must be completed. A processing time of approximately two weeks applies. Visa required nationals should be note that they must apply for permission under the scheme prior to entering the state and they must then secure an entry visa on the basis of any approval letter issued. 

Further information in relation to the scheme is available here. We would be happy to deal with any queries you may have in relation to the applicability of the scheme.

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

FIRST DECLARATION OF STATELESSNESS IN IRELAND

We are delighted to announce that on the 27th March 2014, the Irish Naturalization and Immigration Service, on behalf of the Minister for Justice and Equality, issued what we believe to be the first declaration of statelessness in the State. The declaration was issued to our client on foot of his pending High Court proceedings again the Minister for Justice. 

Our client is from Estonia, and is of Russian ethnicity. At the time of his birth, this area was within the territory of the USSR. In 1991, when Estonia became an independent State, his home town, with mostly Russian inhabitants, became part of the new territory of the Estonian State. The newly formed Estonian government did not issue Estonian citizenship to all residents within the territory of Estonia. Persons of Russian ethnicity, like our client, were issued with an “Alien’s Passport”, identifying their citizenship as “undefined”. 

Our client has resided in Ireland since 2002, but until now could not obtain recognition of his stateless status because no legal or administrative process has been set up to deal with such applications. This is despite Ireland’s obligations pursuant to the 1954 Convention relating to the Status of Stateless Persons, which Ireland has ratified. 

In February 2013, Brophy Solicitors submitted an application to the Minister for Justice and Equality for a Stateless Travel Document for our client, and the application was refused because he did not have a letter form the Minister confirming his stateless status in the state.. We then applied for a declaration of statelessness, and on receiving no response three months later, we issued High Court proceedings against the Minister. 

We are delighted for our client and his family that after 14 years, he has finally acquired recognition of his legal status as a stateless person, and we wish him and his family a big congratulations! 

However, we remain very concerned for the other stateless persons in Ireland who are currently left in a legal limbo. We highlight the urgent need for a legal and administrative process to be set up for the recognition of stateless persons in Ireland.

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

RESIDENCE PERMISSION FOR THE SPOUSE OF AN IRISH NATIONAL

We are working on many cases involving the ongoing fight of some Irish citizens to acquire a right of residence for their non EEA spouses. Some of these cases involve long stay visa applications for newly weds. Often they are refused on the basis that they did not have sufficient face to face meeting prior to their marriage. Frequently, this ground of refusal is relied on in respect of arranged marriages, where the Irish citizen and their spouse were not permitted to meet prior to their marriage. From our experience, if the couple arrange a number of holidays together post marriage, and evidence the genuine ongoing relationship, and there are no countervailing circumstances, the visas should be granted. 

However, the cases where the refusal is based on an event prior to marriage cause more difficulty. A common example is the often-cited ground of refusal of the poor immigration history of the visa applicant. This is more difficult to deal with as the applicant cannot undo what has already been done. 

We wish to highlight the recent High Court judgement Gory v The Minister for Justice and Equality, delivered by Mr Justice MacEochaidh on the 30th January 2014. The judgement is very helpful in reviewing the manner in which the Minster must balance the interests between the State and the Irish citizen in cases where the applicant may have a poor immigration history. 

The case concerned Mr and Mrs Gory, a Nigerian and Irish citizen and married couple who sought to challenge the Minister’s decision to refuse their application to revoke the a deportation order previously issued against Mrs Gorry prior to their marriage. The revocation application was refused on the basis of Mrs Gory’s poor immigration history. The Minster had found that there were no insurmountable obstacles to Mr Gory moving to Nigeria to live with his wife. 

Mr Justice MacEochaidh found that this was an incorrect test to apply. He referred to both Irish UK case law which had previously established that the “insurmountable obstacles” test is no longer an appropriate test to apply to family life assessments. He confirmed that the test now to be applied is the test of reasonableness – i.e. is it reasonable for the Irish citizen to leave this State in order to carry on his/her family life with his/her non EEA spouse. 

Mr Justice MacEochaidh also reviewed the Article 41 case law in the area. He confirmed that it is clear from the jurisprudence that marriage between an Irish national and a non national may engage the right of residence which could only be denied for countervailing purposes. He confirmed that the Minister must balance the potentially competing interests in a proportionate and fair manner. 

In summary he stated as follows ; “Having reviewed all of these decisions, it is my view that as Irish national married to a non Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. The right is not absolute. The State is not obliged in every case to accept the country of residence chosen by such a couple. Though I believe such a prima facia right exists, not every set of circumstances will engage the right.”

Considering the case before him, Mr Justice MacEochaidh took into account the fact that the applicants had acknowledged there had been a breach of immigration law, and that there was no question of non immigration criminality or any disregard for the family or marital rights. He noted that they demonstrated commitment to their marriage, and that Mrs Gory had left the State in compliance with the deportation order. In these circumstances, Mr Justice MacEochaidh found the Minister’s decision to refuse to revoke the deportation order was unlawful, and directed that the decision be overturned. 

We submit the deciding officer must therefore apply a presumption that the spouse of the Irish citizen in a genuine and subsisting relationship will be granted permission, unless countervailing circumstances should warrant otherwise, and no such exceptional circumstances exist. Further, poor immigration history alone will not be a sufficient countervailing circumstances to render a decision to refuse the non EEA spouse residence permission as proportionate or reasonable.

Karen Berkeley 

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

UPDATE - GOOD NEWS ON WORK PERMIT APPLICATION

Many clients have attended our offices recently and expressed concern about how difficult it is to secure a work permit at present. We are pleased to report however that we recently received another positive decision in a work permit application. 

Our client has been in the State since 20007 and has resided as a student on Stamp 2 permission. Our client had made two previous applications for a work permit that had been rejected partly on the basis that the proposed job was not suitable and did not fit within the work permit criteria. Our client is extremely well-qualified however and with our advice, was able to show that the job offer did fit within the criteria and he was indeed eligible. 

The key to success in this and other recent cases we have dealt with is ensuring that the applicant provides sufficient supporting documentation and squarely addresses any issues arising in the previous applications that have been refused. 

Our client is extremely pleased with the outcome as is his employer, who believes the particular skills and experience of his new employee will help grow the business and create more employment in the future.

Rebecca Keatinge

Brophy Solicitors

THE URGENT NEED FOR REFORM OF DIRECT PROVISION SYSTEM

With significant immigration reform promised for 2014, most specifically with respect to the Immigration, Residence, and Protection Bill, many have called for changes to the State’s direct provision system. Direct provision is a system designed to provide for the welfare of asylum seekers and their families on a “no choice” basis while awaiting application decisions. Composed of a monitored network of institutional buildings, local hostels, hotels, and guest houses, direct provision provides room and board, medial care, and a nominal personal allowance for asylum seekers and their families. 

The system was originally instated in April of 2000 and aimed to house asylum seekers for approximately 6 months while their application was processed. Today, however, most spend between three to seven years in direct provision, most often in accommodation that were never meant for long term living. With 35 centres spread across the country, living conditions vary, however most require shared housing for single applicants, single rooms for families, and scheduled meals three times a day. They also prohibit applicants from seeking work and provide little integration support in the form of psychological aid, education, and legal support.

With many asylum seekers now spending lengthy periods of time living under these circumstances, critics have focused primarily on the systems impact on the mental and physical well being of both applicants and their families, most especially with respect to children. Growing up in this institutionalized setting, children are provided little space to play, minimal stimulation, deprived of family meal times, and given little opportunity to integrate into a community or educational setting with children their age. The mental health of adults is of similar concern, as they are essentially forced to remain idle throughout their time in direct provision and given little opportunity or means to integrate into society.

In responding to these issues, the Irish Refugee Council has called for a series of reforms to the direct provision system including:

• Creation of a non-profit centre providing essential psychological and legal services for this vulnerable population
• Appropriate accommodations with respect to family life
• A system that embodies the best interest of the child
• A system that identifies and properly supports individuals with special needs and vulnerabilities
• Availability of legal advise
• Independent companies and inspection mechanisms
• Transfer to independent living within a maximum of 6 months
• Healthcare
• Right to work

Many of these reforms are required by the EU Reception Conditions Directive (2003) which ensured access to housing, food, healthcare, employment, medical and psychological care for asylum seekers. While Ireland chose not to sign up to this Directive, the Irish Refugee Council argues that Ireland is held accountable to many of these standards by various EU provisions and emphasizes Ireland’s international obligations most specifically with respect to human rights.

While the Irish Refugee Council acknowledges that these changes cannot occur over night and encourages steps to be taken over time, it aims to have these reforms addressed and implemented in the promised 2014 Immigration, Residence, and Protection Act.

ADDITION OF THAILAND TO THE IRISH SHORT-STAY VISA WAIVER PROGRAMME

Beginning 18 November 2013, citizens of Thailand were permitted to avail of the Irish Short-stay Visa Waiver Programme. Initiated to promote tourism from emerging markets in July 2011, the Programme has since achieved significant economic success in attracting increasing numbers of visitors to Ireland, a success that it hopes to continue with the addition of Thailand to the list of countries covered by the scheme. 

The Irish Short-stay Visa Waiver Programme allows visitors or business people from 17 countries who have lawfully entered the UK, on a valid UK visa, to travel to Ireland without the requirement of obtaining an Irish visa. The minister notes that while well over 500,000 Thais visited Europe in 2012, with about 140,000 going to the UK, less than 6,000 came to Ireland. By removing the Visa requirement, the Minister hopes to capitalize on this market in working to attract increasing numbers of Thai tourists and 

business people.

This endeavour is also further supported by continued efforts to work with UK counterparts on developing reciprocal visa arrangements for the Common Travel Area. The end goal of these arrangements is to establish a “system whereby only one visa is required to travel to and around the Common Travel Area.”

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