Friday, May 30, 2014

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

Wednesday, May 21, 2014

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 

Wednesday, May 14, 2014

WORK PERMIT UPDATE: REINTRODUCTION OF THE LABOUR MARKET NEEDS TEST

We recently posted an article in relation to the publication of the Employment Permits (Amendment Bill 2014). This legislation proposes significant changes to the existing work permit regime and the main changes are set out in our previous post
We have further reviewed the proposed changes and note that the Bill is proposing to reintroduce the Labour Market Needs Test to all employment permit applications and this likely to have a significant impact.
The current position is that when an employee makes an application for a work permit, there is no requirement to satisfy the Labour Market Needs Test (LMNT). In circumstances where the employer makes the application however, the test must be satisfied. The test requires an employer to advertise any vacancy with the Department of Social Protection Employment Services/EURES Employment Network for at least two weeks as well as in a national newspaper for at least three days and also in either a local newspaper or jobs website for three days. Applications cannot be submitted until the Labour Market Needs Test has been completed. Full details of the test can be found here
The reintroduction of the Labour Market Needs Test is likely to make the work permit application process more arduous and less attractive to employers, to the disadvantage of potential applicants who may have valuable skills and experience. Our own experience is that many employers simply decline to interview applicants on the basis that they do not hold a stamp 4 and do not take into account the fact that a prospective employee may be eligible for a work permit should the job be offered to them. Employers are also often not aware that there would be no significant delay should the applicant to have to obtain a work permit as applications are processed relatively quickly. The reintroduction of the LMNT to all work permit applications, whether made by the employee or the employer, may present a further disincentive to employers to take on applicants who require a work permit.
We will provide a further update on other relevant aspects of the Bill. It should be noted that the Bill is yet to be enacted and is not currently law. We will confirm on our blog when the provisions are enacted.

FURTHER UPDATES IN RESPECT OF SUBSIDIARY PROTECTION

On the 8th May 2014, the European Court of Justice delivered the much awaited decision of Case C-C604/12; HN v Minister for Justice and Law Reform.

The Court has held that Directive 2004/38, the principle of effectiveness and the right to good administration do not preclude a national procedural rule, such as that in place in Ireland, under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that firstly it is possible to submit the application for refugee status and the application for subsidiary protection at the same time and secondly that the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court. 

HN concerned the Minister’s refusal to consider Mr. N’s application for subsidiary protection status on the basis that he had not previously submitted an application for refugee status. For further details, please refer to our blog post dated 7th December 2012: http://brophysolicitorsimmigration.blogspot.ie/2012/12/should-state-consider-subsidiary.html

The decision again thrusts into the spotlight the abundance of problems in relation to subsidiary protection in Ireland, which have lead to unacceptable delays in the assessment of individual’s right to subsidiary protection. It is noted that changes have been instigated following the decision of MM v Minister for Justice, Equality and Law Reform, through the implementation of the Statutory instrument 426 of 2013 (http://brophysolicitorsimmigration.blogspot.ie/2013/11/new-subsidiary-protection-statutory.html) which has transferred responsibility for the processing of the applications to ORAC. This has included individual’s undergoing a second interview, in an attempt to address credibility concerns, and many of our clients have subsequently received positive decisions in respect of their applications. 

Despite this progress, it is still necessary for applicants in Ireland to conclude their entire refugee application and appeal prior to being permitted to lodge an application for subsidiary protection. In light of the Court of Justice’s judgment, it is urged that the new system be amended at this early stage to accommodate the making of subsidiary and asylum applications simultaneously. Such amendments will further serve to address concerns in respect of fair procedure and good administration, credibility, costs and moreover will bring the Irish system in line with that of our European counterparts. 


Naomi Pollock

Wednesday, May 7, 2014

IMPORTANT CHANGES TO THE START UP ENTREPRENEUR PROGRAMME

The Minister for Justice, Equality & Defence recently announced significant changes to the Start Up Entrepreneur Programme (STEP) that is operated by the Department of Justice. 

The most significant changes to the scheme include a reduction in the minimum investment required from €75,000 to €50,000. Where more than one principal is involved in establishing the business, the minimal investment for second and subsequent entrepreneurs will be €30,000 per principal. A further change is that there will now be provision of a new 12 month immigration permission available for foreign national entrepreneurs attending incubators or innovation boot camps in Ireland. The purpose of the 12 months permission period is to allow entrepreneurs time to prepare their STEP application and to ensure there is a clear route for migrant entrepreneurs to move from the start up to realisation phase of their projects. It is noteworthy that the 12 month period will also be made available to non-EEA students, who graduate with advanced science, technology, engineering and mathematics degrees in Ireland and who intend to work on preparing an application for STEP.

It is clear that these changes make the programme more accessible to foreign national entrepreneurs. The basic requirements will remain the same and is open only to high potential start ups that are introducing a new or innovative product or service to international markets. The start up must show that it has the capacity to create 10 jobs in Ireland and realise €1 million in sales within three to four years of start up. It is a further condition that the start up be headed by an experienced management team, that it be headquartered and controlled in Ireland and that the venture is less than six years old. 

It is interesting to note from the Minister’s recent announcements that there have been 35 applications since the scheme came into operation in April 2012, with 26 of these applications approved and 10 refused, two applications withdrawn and three pending.

These amendments to this administrative scheme are essentially designed to make it more accessible and attractive, and to provide a clear entry route to the scheme. It certainly makes it a more realistic prospect for perspective entrepreneurs and we expect that the government is hoping that there will be an increase in applications over coming months. 

It should be noted that the Minister also announced that unsuccessful applications for the STEP will be referred to the Business Permission Scheme that is currently operated by the Irish Naturalisation & Immigration Service. Significantly, the Minister has stated that terms of the business permission scheme are currently being reviewed to better facilitate entrepreneurship at the more traditional end of the scale.

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