WORLD REFUGEE DAY

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

 

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

 

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

 

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

 

 

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

 

UPDATE ON THE IMMIGRANT INVESTOR PROGRAMME

We have been dealing with a number of queries in relation to the Immigrant Investor Programme. The programme is open to non-EEA nationals and their families who commit to a specific investment in Ireland. Successful applicants will be granted rights of residence in Ireland with an initial period of two years and then a further three years after which they may be eligible to apply for citizenship.

Two specific queries have come up several times when we have been approached by potential applicant investors.

The first question relates to whether or not an investor is required to be resident in Ireland should their application be successful. It is clear from the Departmental guidelines that there is no minimal residence requirement other than a stipulation that the person concerned must visit Ireland at least once every 12 months.

A second query that we have been dealing with is in relation to the different types of investments open to potential applicant investors. The previous guidelines indicated that applicants could apply to an “approved investment fund”. The only guidance provided by the Department on this type of investment was that the fund invested into would have to be regulated for the purposes of doing business in Ireland and the investment strategy of the fund must be compatible with the aim to the scheme.

We have written to the Department on several occasions looking for a further clarification on what types of funds would be acceptable as approved funds. We note that the guidelines on the INIS website have now been updated to deal with this issue. It is stated that the approved investment fund is not available at this point and further details will follow. We refer you to the updated guidelines that are available here.

While the approved investment fund is no longer available, it should be borne in mind that there are a number of other options available to possible applicants including an investment into Irish Enterprise, an investment into an Irish Real Estate Trust and a mixed investment into residential and commercial property. There is also scope to make a one off philanthropic endowment and also provision to invest in the Immigrant Investor Bond.  

It is clear from recent changes to the Entrepreneurship Programme and the Immigrant Investor Programme that these schemes are being honed by the Department and that the guidelines are being frequently updated and amended. Anyone considering making an application should be sure to check the up to date position to check their eligibility and the current requirements.

Rebecca Keatinge

Brophy Solicitors

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

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

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

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

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

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

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

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

Karen Berkeley 

Brophy Solicitors

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.

Brophy Solicitors

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

Brophy Solicitors

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.

Rebecca Keatinge

Brophy Solicitors

APPLICATIONS FOR VISAS AND RESIDENCE PERMISSION FOR DEPENDANT NON NATIONAL PARENTS

We are currently working on many applications on behalf of our clients to be joined in the State by their elderly dependant non EEA parent/s. The cases involve general Long Stay Visa applications, and sometimes Change of Status applications while the parent is already in the State.

This is an area now governed by the Minister’s “Policy Document on NON EEA Family Reunification” published in December 2013. The guidelines focus on the financial responsibility for the subject of the application. The matter of whether the subject is dependant or not is left to the sponsoring family member to prove. No definition of dependency is provided. The guidelines indicate that the onus is on the sponsoring family member to show that there is no viable alternative option other than the dependant parent residing in Ireland. The specific financial thresholds referred to in the guidelines include evidencing that the sponsoring family member is earning a minimum of €60,000/ €75,000 (net) for the three years preceding the application (depending on whether one or two parents are the subjects of the application). 

The high financial thresholds will most likely act as a barrier to many applications such as this, if applied very stringently. However, we highlight that the policy guidelines are subject to the parameters of the law. In general, the law requires that each application is assessed on it’s individual merits, and a fair and reasonable outcome is reached, appropriate and proportionate to the circumstances at hand. 

We have limited specific law in this area, other than the significant judgement in the case of Mr Justice Cooke in the case of O'Leary v. Minister for Justice [2012] IEHC 80 (High Court, Cooke J, 24 February 2012). Mr Justice Cooke gave weight to the moral institution of the family, as protected by Article 41 of the Constitution, and confirmed that dependant parents of an adult child remain members of the family unit within the meaning of Article 41. He referred to right to rely on Article 41 when seeking State intervention to discharge a “moral obligation” towards non national family members in need of support and care.

In terms of the lawfulness of any interference by the State in family life, Mr Justice Cooke stated as follows;

“The core value enshrined in Article 41 is the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified, in the interests of individual members of the family or necessary in the overriding public interest.”

Mr Justice Cooke emphasized in his judgement that it would be an unbalanced approach for the Minister to isolate an analysis of dependency to purely financial aspects. He also confirmed the definition provided by Mr Justice Hogan in the judgement granting leave, that while dependency must go beyond “welcome” support, it is not necessary that the receiver of support be in a situation of destitution.

We would submit that in cases where a legitimate relationship of dependency and financial self sufficiency exists, and there are no exceptional circumstances to warrant a lawful refusal, Mr Justice Cooke’s judgement in the O’Leary case gives much scope for applicants to argue their case outside the strict financial thresholds of Minister’s guidelines.

Karen Berkeley 

Brophy Solicitors

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

Brophy Solicitors

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

Brophy Solicitors

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

A new notice on the INIS website indicates as follows:

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

• Eden College

• National Media College (formerly New Media College)

• Millennium College

• Business & Computer Training Institute

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

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

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

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

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

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

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

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

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

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

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

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

Karen Berkeley 

Brophy Solicitors

ATYPICAL WORKING SCHEME

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

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

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

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

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

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

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

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

Rebecca Keatinge

Brophy Solicitors

STEP FORWARD FOR THE RIGHTS OF TRANSGENDER PERSONS

We are delighted to confirm that we have won a battle with the Department of Justice to fully recognize our client’s change of gender. We had requested that the Minister for Justice and the Garda National Immigration Bureau to amend the Register of Non Nationals to reflect her gender change from male to female. The amendment of identity documents to reflect change of gender was highlighted by our client’s medical team as being a significant part of her change of gender process. However, both the Garda National Immigration Bureau and the Department of Justice initially refused to do so, each indicating that it was not within their remit. 

The Register of Non-Nationals is under the direction of the Minister for Justice and Equality (section 9(1) of the Immigration Act 2004), and it was the Garda National Immigration Bureau’s position that it required written authorization from the Minister in order to register Ms. Loh as female. We submitted to the Department that there is nothing in the section which prohibits the amendment of register to reflect her change of gender. We submitted that the Irish Naturalisation and Immigration Service, and the Garda National Immigration Bureau, were in fact obliged by section 3 of the European Convention on Human Rights Act 2003 to carry out their functions in a manner that is compatible with the European Convention on Human Rights, which necessitated the amendment. 

Ultimately, High Court proceedings were avoided, when advices from the Attorney General resulted in the Department granting our client the permission she required to re register as a female. She was subsequently provided with a GNIB registration certificate and subsequently a travel document reflecting female gender.

The acceptance and recognition of one’s gender is a fundamental right, and we were very proud to have helped our client to achieve her personal goal, while also making a significant step forward for the rights of transgender persons in Ireland. We wish to congratulate her on having the courage to fight this point of public importance to success. 

However, the rights of transgender persons in Ireland remain below accepted international standards. In October 2007, Lydia Foy’s ten year legal battle for a birth certificate recognizing her true gender ended with a favourable High Court decision. The High Court ruled the State in violation of the European Convention on Human Rights Act 2003 and required that it recognize transgender persons in their acquired and true gender. However, despite this progressive victory for the transgender community, today, Ireland is the only EU state without a legal mechanism for recognition of transgender persons. While discussions for a Gender Recognition Bill have begun, several of its proposals have already been deemed unlawful in countries such as Germany and Austria, most notably the requirement of married transgender people to divorce their partners before applying for gender recognition. Thus, while the Gender Recognition Bill may perhaps a step in the right direction, Ireland still appears to be well behind its EU counterparts with respect to recognition of transgender persons. Nearly seven years past the High Court ruling on the issue, the State has failed to respond, leaving its transgender citizens on the fringe, and opening itself to heavy criticism from the international human rights community.

Karen Berkeley 

Brophy Solicitors

STATELESS STATUS IN IRELAND

We were pleased to see the media interest over the weekend in our landmark case concerning the first stateless declaration in Ireland;

http://www.irishtimes.com/news/social-affairs/ireland-gives-legal-status-to-first-stateless-resident-1.1742516

http://www.thejournal.ie/stateless-man-1386549-Mar2014/

We hope this case will help other persons in Ireland who are Stateless and trying to gain legal status, stateless travel documents and naturalization.

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