BUSINESS IMMIGRATION UPDATE: IMMIGRANT INVESTOR PROGRAMME

We have received several queries from prospective investors looking for information on the Immigrant Investor Programme that was introduced by the Department in July 2013. 

The purpose of the Immigrant Investor Programme is to enable non-EEA nationals and their families who commit to an approved investment in Ireland to acquire a secure residency status in Ireland. The application is considered by an Evaluation Committee who make a recommendation to the Minister for Justice and Equality as to whether or not the application meets all necessary requirements. 

Qualification Criteria: 

In order to be eligible for the programme, an investor must propose an investment in one or more of the following five categories;

a) A once off endowment of a minimum of €500,000 to a public project benefiting the arts, sports, health, culture or education. (The endowment figure is reduced to €400,000 per person where 5 or more individuals pool their endowment for one appropriate project). 

b) A minimum €500,000 aggregate investment into new or existing Irish businesses for a minimum of three years.

c) €500,000 invested in an approved fund. The funds will have to be regulated for the purpose of doing business in Ireland and the investments strategy of the fund must be compatible with the aims of the scheme. 

d) Minimum €1,000,000 investment in a special zero interest 5 year immigrant investor bond.

e) Mixed Investment. Investment in a residential property of minimum value of €450,000 and a straight investment of €500,000 into the immigrant investor bond, giving a minimum investment of €950,000.

Residency permission:

Applicants for the Immigration Programme who have their investment proposals approved are invited to apply for residency permission under the Programme and will be eligible for permission to reside and work in Ireland for two years. During this period beneficiaries must have private medical insurance and must not have recourse to public funds. Permission will be renewed thereafter subject to the investment remaining in place thereafter for the designated period and as long as the Evaluation Committee are satisfied with the success or viability of the investment.

Advice: 

We are happy to advise prospective applicants on their eligibility and draft applications on their behalf. 

**Updated by Brophy Solicitors on 4th February 2014**

Rebecca Keatinge

Brophy Solicitors

Immigrant investor update: Start-up Entrepreneur Programme

The Irish Immigration Blog

We have recently had several queries in relation to the Start-Up Entrepreneur Programme, introduced by the Department of Justice in 2013. This Programme enables non-EEA nationals and their families who commit to high potential start-up business in Ireland to acquire secure residency status in Ireland. 

Applicants must fulfill certain criteria and permission from the Minister for Justice and Equality under the terms of this Start-up Entrepreneur Programme.

Qualification Criteria:

The High Potential Start-up (HPSU) must:

• introduce a new or innovative product or service to the international market
• be capable of creating 10 jobs in Ireland and realising €1 million in sales within 3-4 years of starting up
• be led by an experienced management team
• be headquartered and controlled in Ireland
• be less than 6 years old (existing HPSU businesses can be moved to Ireland)

The Programme is not intended for retail, personal services, catering or other businesses of this nature, where the existing business immigration channel known as the “Business Permission Scheme” may be a suitable alternative. It should also be noted that the Department also introduced an immigrant investor programme specifically for individuals who seek to invest in the State as distinct from operating a business here. 

Important factors and documentation to consider when applying for the Start-up Entrepreneur Programme include:

• There are no initial job creation targets as it is recognised that start-up business such as these need time to get up off the ground
• The applicant must have access to funding of €75,000 (this may be provided by or from a combination of; their own resources, a business loan, business angel/venture capital funding or a grant from an Irish State Agency)
• If there is more than one principal, other than family members, each principal will be required to demonstrate access to funding of €75,000 
• A statement of character from police authorities of each country in which they have resided for more than 6 months during the 10 year period prior to application. 
• A successful applicant is required to submit an affidavit attesting to their good character and affirming no criminal convictions.

We anticipate further developments to the Start-up Entrepreneur Programme and other business immigration schemes and expect to post updates on our blog.

Rebecca Keatinge

Brophy Solicitors

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

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

Case C-378/12

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

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

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

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

Case C-400/12

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

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

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

Summary 

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

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

Naomi Pollock

Brophy Solicitors

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