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

REVOCATION OF IRISH CITIZENSHIP

We have been working on a number of cases involving the proposed revocation of Irish citizenship in the recent months.

As of 2012, the Minister stated that for the period 2002-2012, there had been no cases where a Certificate of Naturalisation was revoked by either he or his predecessors. While no further numbers have since been released, an article published in the Metro Eireann in February of 2013 notes that the Department informed them of an unspecified number of cases being considered under the revocation provisions of the Irish Nationality and Citizenship Act 1956 and that some or all of the cases could result in the revocation of the certificate of Naturalisation in 2013. (http://metroeireann.com/article/citizenship-on-the-line,3541)

Basis for Revocations of Irish Citizenship:

The Irish Nationality and Citizenship Act, 1956, section 19, states the Minister may revoke a certificate of naturalisation if he is satisfied:

a) You obtained it through fraud, misrepresentation or concealment of material facts or circumstances 

b) You have, through an overt act, failed in your duty of fidelity to the nation and loyalty to the State 

c) You were ordinarily resident outside Ireland (other than in public service) for a continuous period of 7 years and, without a reasonable excuse, did not register your name and a declaration of your intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister for Justice and Equality on an annual basis

d) You are also, under the law of a country at war with the State, a citizen of that country 

e) You have, by any other voluntary act other than marriage or registration of civil partnership, acquired citizenship of another country 

This section further states, before revocation of a certificate of naturalisation, the Minister will inform the person in advance of his intention to revoke the certificate, stating the grounds and the right of that person to apply to the Minister for an inquiry as to the reasons for revocation. On application for an inquiry, the Minister will refer the case to a Committee of Inquiry who will report their findings to the Minister. A notice of revocation of one’s certificate of naturalisation will be published in Iris Oifigiuil (Ireland’s official State Gazette).

Form 5-Declaration of Intention to Retain Irish Citizenship by a Naturalised Irish Citizen Residing Outside Ireland

Of particular importance is point c) – i.e for those naturalized persons outside the State, who have failed to register their name and a declaration of their intention to retain Irish citizenship, become liable for revocation after having been ordinarily a resident outside Ireland for a continuous period of 7 years. Thus, in order to retain citizenship under these circumstances, it is essential to complete Form 5, prior to the end of one’s 7 year period. Failure to complete this form could result in revocation of one’s citizenship. **Please note that there is a new version of this form, updated January 2014, available on the INIS website (http://www.inis.gov.ie/en/INIS/Form%205%20%28Ver%205.0%20Jan%202014%29.pdf/Files/Form%205%20%28Ver%205.0%20Jan%202014%29.pdf)

Karen Berkeley 

Brophy Solicitors

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

UPDATE ON STAMP 0 AND STAMP 3 RESIDENCY PERMISSIONS

Recently we have received queries from confused clients whose Stamp 3 permission has been changed to the ‘low level immigration permission’ that is Stamp 0. There are notably much similarity between these permission types, hence there is much confusion as regards to which stamp may be applicable to various circumstances.

In order to provide clarification, it is firstly necessary to understand what exactly each permission entails:

STAMP 0

Stamp 0 residence permission was implemented by INIS in December 2011. The procedure implement the stamp was vague, and unfortunately not much clarification has since followed.

What do we know?

According to the INIS website guidelines, Stamp 0 is ‘a low level immigration permission that allows a person to remain lawfully in Ireland for a specific temporary and limited purpose. It is not intended to be a pathway to any more permanent form if immigration’.

This appears to imply that stamp 0 does not provide reckonable residency required for naturalisation. However, on the contrary, it has been confirmed to us by the Department previously that the stamp does indeed count for reckonable residency. We are currently seeking clarification from the Department on this point.

There is no specific application process but rather the applicant will seek permission in the normal way.

It is noted a service provider, or academic, or an individual in exception humanitarian circumstances are examples of those who may avail of this permission.

Holder of the permission may not work or engage in a trade, business or profession, unless specified in INIS letter.

It is further noted that the stamp is provided on the basis that the holder receives no State beneifts, and that they are self sufficient through personal resources of financial support from an employer or family while present in the State.

As with all Immigration permissions, breaching a condition of the permission may result in a permission being revoked or not being renewed.

STAMP 3

A holder of stamp 3 per mission is entitled to remain in Ireland on the basis that they do not enter employment, nor engage in any business or profession and do not remain later than the specified date.

Main categories of those who are granted this permission include: non EEA visitors, non EEA retired person of independent means, non EEA Minister of Religion and member of religious order, non EEA spouse/dependent of employment permit holder.

Stamp 3 permission is reckonable, and thus after 5 years a holder is eligible to apply for naturalisation. 5 years of stamp 3 permission also entitled one to apply Stamp 3 Long Term Residency, which is valid for a further 5 years.

It is submitted that the vital differences in these permissions is that Stamp 0 does not provide for a more permanent form of residency and it not reckonable.

Confusion?

In consideration of the above information, in what regard has there been confusion in relation to these permissions?

Firstly, as regards clients who have been granted Stamp 0, the renewal process in certain cases, where there has been no change regarding the conditions at the time of granting of the permission, has been met with some difficulty, with the Department providing new application numbers, inferring it is indeed a new application, rather than a more straightforward renewal process.

Secondly, we have seen stamp 0 issued to many non EEA retired nationals of independent financial means, and non EEA dependents on employment permit holders in that state. This seems contrary to the INIS guidelines which explicitly state such persons are eligible for stamp 3 permission. Additionally, people who have been granted stamp 3 person on such basis have prior to the impending renewal of the permission been notified that their status will change to being that of stamp 0. We find it confusing that the decision has been taken to make such amendments, when there has not been any significant change in the circumstances of such persons. There is much confusion as to whether this new permission is applicable regarding reckonable residency. As noted above, we are seeking clarification on this point, and will post on this matter once we have received an adequate explanation.

We urge that greater clarification for this change in permission be provided. The guideline note appears to provide information contrary to that which has been stated by the Department. We further stress the need for a more straightforward stamp 0 renewals process, as the current manner with which it is being dealt with cannot be deemed as an efficient nor effective system.

Naomi Pollock

Brophy Solicitors

DUBLIN III RECAST REGULATIONS

The festive season is upon us, with Christmas fast approaching and the New Year just around the corner. In respect of immigration law, January 2014 also heralds the introduction of the Dublin III recast regulation in Ireland. 

The Regulation comes into force on 14th January 2014 and shall apply to applications for international protection lodged after that date. The Dublin III regulation is the only ‘recast’ that Ireland has opted in to. 

The purpose of the Dublin Regulation is to lay down the criteria and mechanisms for determining member state’s responsibility for examining an application for international protection, lodged in one of the member states by a third country national or a stateless person.

The main objectives of the amended Regulation is to enhance the efficiency of the functioning of the current Dublin Regulation, as well as to ensure higher standards of protection for the applicants who fall under the responsibility determination procedure.

In reports produced this year by the Jesuit Refugee Service (JRS) and the European Council on Refugees and Exiles, (ECRE) it was highlighted that there are vast differences in the manner the Dublin Regulation is operated by member states. There are no common standards of information provision or reception conditions, and furthermore no common means to assess applicants’ vulnerabilities and special needs.

As a result of these contrasting practices, drastic consequences have ensued, including families torn apart due to government’s focusing on returning the asylum seeker to the country of first entry. Asylum seekers have spent months in detention and upon release, many have no guarantee they will have access to adequate housing and welfare support. 

It is submitted that the new framework includes important amendments in this regard, including the right to information, individual interview, guarantees for minors, a framework setting out the conditions for when a person may be detained, right to effective remedy, a mechanism for early warning, preparedness and crisis management.

These new provisions may better enable people to judicially challenge transfers which may not be in accordance with their fundamental rights.

However, as noted by the JRS and ECRE, the core of this matter and the potential impact that the new Regulations will render depends on how they are implemented on a national level. For a European Common Asylum system to be effective, governments must correctly interpret and implement these regulations. Asylum seekers must have access to fair asylum procedures and decent reception conditions wherever they are in Europe.

Naomi Pollock

Brophy Solicitors

IMPLEMENTATION OF THE INITIAL STAGE OF THE NEW SUBSIDIARY PROTECTION PROCEDURES

As noted recently in our blog, the guidelines for the new subsidiary protection application have now been published on INIS website. 

Our clients have now received standard forms from ORAC, who are now responsible for these applications, requesting that they confirm their intention to either remain within the procedure or opt out. As previously noted in our blog, many clients feel that the new procedure will create further delays as it involves another interviewing procedure similar to that carried out at the stage of their asylum application. It is possible to refuse to attend further interviews; however it is also possible for ORAC to insist on attendance in order for the application to be processed.

We must emphasise that although on first look remaining within the subsidiary protection process is potentially unappealing due to possible delay, the new policy has been implemented in an attempt to improve the procedure. Until now, the number of subsidiary applications granted in Ireland has been comparatively low in relation to our European counterparts. We hope that the new procedure may see improvements in this regard. Applicants cannot assume that upon withdrawing their subsidiary protection application that a leave to remain application which has been pending for some time will be considered favourably. 

Therefore, we advise that if you wish to withdraw your application, please consider the implications of doing so extremely carefully. 

If you wish to review further information regarding the procedure, please see our recent blog posts. 

Naomi Pollock

Brophy Solicitors

NOTE ON DEPENDENT – TYPE VISAS

We have recently received a notification from the Irish Embassy in New Delhi that the issue of dependent-type visas is currently ‘being developed.’ 

As a result of this new development, such applications where dependent family members seek to join family members in the State, are being temporarily suspended for a number of weeks pending publication of an appropriate policy. 

Such applicants will possibly have a long delay on their visa applications for family members. We have experienced a range of queries from both non-Irish and naturalised Irish persons living in the State in respect of their family members residing abroad who wish to join them. Such family members are either financially, emotionally or socially dependent on their family member(s) in Ireland. Over the years, we have never seen a policy in place to deal with such applications. It apparently depends on the Embassy handling the dependent –type application. For example an application for a dependant father to join his daughter and her Irish husband in the State through the Beijing based Irish Embassy was said not to exist – the Embassy advised that it would be refused as such application could not be processed. Some clarity on the issue would be a welcome step! 

Sarah Henry

Brophy Solicitors

NEW SUBSIDIARY PROTECTION STATUTORY INSTRUMENT HAS BEEN PUBLISHED

The publication of a new subsidiary protection statutory instrument was stated this week on the INIS website.

The information notice appearing on the website informs:

"With effect from 14 November 2013, responsibility for processing all existing and future subsidiary protection applications has 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 (attached below) 

SI 426 of 2013 (PDF - 1134KB)

A detailed Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the regulations.

SP Information Note - 13th Nov 2013 (PDF - 48KB)"

Similarly ORAC's website also states:

"14 November 2013 - Responsibility for processing all existing and future subsidiary protection applications transfers to the Office of the Refugee Applications Commissioner under S.I. 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013. SI 426 of 2013”

“14 November 2013 - Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the Regulations. An ORAC Information Note on the 2013 Regulations will be available in a number of languages shortly on the ORAC website. Subsidiary Protection Information Note”

The new regulations come into effect today and notice of the making of the S.I. will be published in “Iris Oifigiúil” on Friday 15th November, 2013.

The Department of Justice has issued the following press release:

http://justice.ie/en/JELR/Pages/PR13000386

UNHCR has also released a statement today in relation to the new procedures:

http://www.unhcr.ie/news/irish-story/unhcr-welcomes-the-establishment-of-a-new-subsidiary-protection-determinati

Naomi Pollock

Brophy Solicitors

THE HARSH REALITY OF THE ONGOING ISSUE OF HUMAN TRAFFICKING

The recent horrific discovery of a young girl found abandoned outside the GPO has thrust in the spotlight the ongoing tragedy that is human trafficking.

The girl, originally believed to be 14 or 15 years of age and from Eastern Europe, was reported to be found in a distressed state by Garda Siochana in Dublin City Centre on October 10th. She had no identification and was unable to speak with officers when discovered. 

Although recent developments have led to the belief that the young woman was not in fact a victim of trafficking (see the Irish times news report here http://www.irishtimes.com/news/ireland/irish-news/woman-found-in-dublin-to-remain-in-state-care-1.1586938), the incident still brings home the harsh truth of those vulnerable to and suffering from the crime of human trafficking.

The Immigration Council of Ireland (ICI) have stressed that official figures confirm that over half the victims of human trafficking in Ireland are children. 48 people were identified as being trafficked victims in 2012, with most having been sexually exploited and 23 of those were children.

Recently, (26th September 2013) GRETA (Group of Experts on Action against Trafficking of Human Beings) published a review entitled ‘Report Concerning the implementation of the Council of Europe Convention on Action against Trafficking by Ireland. The Report stated that the number of prosecutions and convictions for human trafficking is still ‘very low’ and the length of criminal proceedings is ‘also a manner of concern’.

Irish authorities were urged by the review committee to take additional measures to ensure that human trafficking offences are investigated and prosecuted effectively, which they say would lead to ‘proportionate and dissuasive sanctions’. It was stressed that new legislation relating to immigration, asylum and human trafficking should be implemented as soon as possible. 

The Immigration Council of Ireland (ICI) has called for development in 4 main areas:

The full implementation of the unanimous recommendations by the Justice Committee for laws targeting the buyers of sex, whose actions fuel trafficking.

The appointment of a National Rapporteur on Trafficking to ensure a joined-up approach across Government and all agencies to respond to this multi million euro crime.

Reform of the system of identifying victims, Ireland has been criticised internationally in this area

The provision of safe and secure accommodation for victims to ensure an end to intimidation, abuse and violence

It must be noted that some progress is underway, with Irish airline crew, airport ground staff, port staff and other transport workers to be offered training to spot victims of trafficking and offer them an escape from pimps and traffickers under a pilot project being developed by the Immigrant Council of Ireland

However, it is necessary to emphasise that human trafficking remains a very real and dangerous concern, prevalent worldwide. Many immigrants into this country and the EU have been or are victims of such crimes. Scarily, many are not even aware that they are such victims. It is necessary to raise awareness of such heinous activity, in order to help prevent and provide aid for victims who find themselves in such circumstances those originally believed of the young woman who is at the centre of the misfortune highlighting the continuing harsh reality of this global crisis. 

To review the Great report, please pursue the following link: 

http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2013_15_FGR_IRL_public_en.pdf

To review the Department of Justice and Equality information website in respect of human trafficking, explaining its causes and what to do in the event of suspicious sightings please see the following link:

http://www.blueblindfold.gov.ie/

Naomi Pollock

Brophy Solicitors