Wednesday, April 30, 2014

NATURALISATION APPLICATIONS ON BEHALF OF MINORS

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

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

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

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

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

Periods spent in state until age of 16 

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

Between the ages of 16 and 18

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

Adult Child between the ages of 18 and 23

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

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

b) Has been registered for that period, and

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

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

s.16 Discretion – minor applications 

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

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

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

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

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

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

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

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

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

Naomi Pollock

PUBLICATION OF THE EMPLOYMENT PERMITS (AMENDMENT) BILL 2014

On the 23rd of April 2014, the Minister for Jobs, Enterprise & Innovation published the Employment Permits (Amendment) Bill 2014. The legislation proposes significant changes to the existing work permit regime. 

The new legislation seeks to update the provisions for employment permit schemes in line with policy and economic developments since 2007. The aim is to cater for a changing labour market, work patterns and economic development needs and to ensure the regime provides clarity and certainty to potential investors and employers. 

Notably, the Bill addresses the deficiencies in the existing legislation that were highlighted in the case of Younis. In this case, a loophole in existing legislation was exposed by a 2012 High Court judgement that overturned a Labour Court decision to award Mr. Younis over €92,000 in back pay. The High Court found that the Employment Permits Act, 2003 prevented an undocumented worker from seeking redress under labour law as the employment contract cannot be recognised. Mr. Younis had worked for seven years as a chef on pay of just ¢55 per hour but he was prevented from securing redress as his employment contract could not be recognised. The new Bill is stated to prevent employers from benefiting from illegal employment contracts in situations where an employee does not hold an employment permit but is required to do so. 

The legislation proposes to create nine categories of employment permit retaining the existing permits of a spousal/dependent employment permit, an intra-company transfer permit, and a contract for services permit. A critical skills employment permit will replace the existing green card and will permit immediate family reunification and provide what is stated to be a fast track to residency. A general employment permit will operate and be issued in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years or for other occupations apart from those included on the list of ineligible jobs. This permit equates to the existing work permit. Most notably there will be introduction of a reactivation employment permit, which will allow for return of individuals to employment, who had fallen out of the employment permit system through no fault of their own. There will also be provision for an exchange agreement employment permit, sports and cultural employment permit and an internship employment permit. 

It should be noted that none of these provisions are yet law and it could some time until they are enacted. To read more about the proposal reforms, see the Employment Permits (Amendment) Bill 2014 and government press release here. Also see a press release from Migrant Rights Council of Ireland welcoming the Bill here.

Rebecca Keatinge

Wednesday, April 23, 2014

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.

Friday, April 18, 2014

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 

Friday, April 11, 2014

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

Tuesday, April 8, 2014

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