ANNUAL REVIEW OF IMMIGRATION IN IRELAND – 2014

The Irish Immigration Blog

Earlier this week, Minister for Justice and Equality, Frances Fitzgerald published the annual review of Ireland’s immigration related activity for the year 2014. In the report, the Minister included immigration statistics, as well as achievements in the area of immigration from the previous year and the Department’s priorities for 2015.

Minister Fitzgerald, when introducing the report, noted the record-breaking number of new visa, residence and citizenship applications received by the Irish Naturalisation and Immigration Service during 2014. Approximately 172,000 new applications were received by the INIS during 2014 while a total of 179,000 were processed. The Minister also alluded to “further ambitious reforms” to the immigration system, which will be a priority for this year. Some of the reforms mentioned include the introduction of a single procedure for the asylum system and the completion of the civilianisation of border control at Dublin Airport. The British Irish Visa Scheme was also referred to in the report. Minister Fitzgerald announced that the target for 2015 is to complete the worldwide rollout of countries which may benefit from this initiative; India will be the next country in which the scheme will be commenced.

As Minister Fitzgerald stated in the report; the civilianisation of border control at Dublin Airport is a key priority for the year 2015.

The report had also shown an increase in the number of students given permission to study within the State. Compared to statistics from 2013, there was an increase of 3,700 students being granted permission to study in the State in 2014. In her report, Minister Fitzgerald introduced a new, government approved, package of reforms for international education and for the student immigration system. The purpose of these reforms is to “provide certainty and clarity”, to “prioritise education over work” and to further align the student migration system with the strategic objective. The reforms include important amendments to the current student work concession.

The report also addresses the reduction of processing times for various applications. Since the introduction of reforms to the citizenship process, announced in 2011, over 90,000 applications have been decided on and the processing times for standard applications has been reduced from 31 months to less than 6 months.

According to the report, there are approximately 95,000 non-EEA nationals with permission to remain in the State; as compared to the estimated figure of 107,000 at the end of 2013. The majority of these are here for work or study. The top 6 nationalities that are registered are; Brazil (12%), India (11%), China (9%), USA (7%), Nigeria (6%) and Philippines (5%). The report also notes that the approval percentage for entry visas in 2014 was 91%.

In the report, the Minister also confirmed that there will be legislative reform to the asylum system with the aim of reducing structural delays and reducing time spent by applicants in direct provision. This will be another key priority of the government for the year and the Minister expects to receive approval to publish the Protection Bill in the near future. These reforms are extremely long overdue.

Other topics have been analysed in this report, such as the taking of biometrics and the use of e-gates at Dublin Airport. The report can be found on the Irish Naturalisation and Immigration Service website here: http://www.inis.gov.ie/en/INIS/Pages/Immigration%20in%20Ireland%20%E2%80%93%202014

Rebecca Keatinge
Brophy Solicitors

The Irish Immigration Blog

“PERSON OR NUMBER?” ISSUES FACED BY IMMIGRANTS ACCESSING SOCIAL PROTECTION – JANUARY 2015

This week, the Minister of State for Equality, New Communities and Culture, Aodhán Ó Ríordáin, launched the report, Person or Number?, which was commissioned by a number of human rights organisations, including NASC, the Irish Immigrant Support Centre and FLAC. It is the second report of its kind with the first being published in 2012. The report examines the hardships faced by immigrants seeking to access social protection services in Ireland. 

The report is based on the analysis of 54 cases where immigrants encountered difficulty in accessing social protection, 35 of which are highlighted in the report. Many of these cases involved more than one issue. The report found several incidents of “serious customer service issues”, including some reports of racism and general rudeness towards immigrants. One such immigrant was allegedly told “‘if you are not happy, go back to ****”, in a manner described as “racist and aggressive”. Another immigrant was told “too many people from **** are coming here to take benefits for free”.

Fiona Hurley of the Irish Immigrant Support Centre, said that “Customer service issues need to be tackled as a priority, as it is unacceptable that anyone should be subjected to any kind of aggressive or abusive behaviour or racism when they present to a State service.” The report noted that while only a few of the cases examined have alleged such behaviour; any instance of this behaviour is exacerbated by the fact that such remarks are coming from someone who is effectively representing the State.

Another difficulty faced by immigrants that is highlighted in the report is poor provision of information. In three of the cases examined, people were told by their local Social Welfare Office that visiting family abroad for up to 3 weeks would not pose any risk to their payments. This information was false because in each case, the people were told when they returned to Ireland that they no longer satisfied the Habitual Residence Condition. This left each person without income while they were waiting for the outcome of the appeal of the decision. The report found that several cases had also shown that people were not told by their Social Welfare Office that they could go to their local Community Welfare Office to apply for short-term financial assistance. The report also found “significant knowledge deficits” among frontline staff regarding the qualifying criteria for some payments. To combat this, the report recommends that an audit of the level of knowledge of frontline staff would highlight areas where training is needed.

Many of the cases examined in the report illustrated the problem of significant delays in processing applications. While this is an issue for most applicants, such delays can cause significantly more difficulty for immigrants, particularly when many are unaware that they can apply for short-term assistance from their local Community Welfare Office. If immigrants do apply for this, they still must satisfy the Habitual Residence Condition if they are to receive Social Welfare payments. To help reduce these delays, the report recommends that decisions on short-term assistance should not require that the Habitual Residence Condition be satisfied as it will be examined in the initial application for Social Welfare. The report also notes some deficiencies with how the Habitual Residence Condition is applied and it also includes recommendations on how to remedy these deficiencies, for example, periodic examinations of Habitual Residence Condition decisions.

While these are some of the key issues that are noted in the report several other issues, including recommendations on how to remedy them, are also included, such as domestic violence and decisions based on speculation.


The full report is available online and can be found here: http://www.livinginireland.ie/images/uploads/Person%20or%20Number.pdf



Rebecca Keatinge
Brophy Solicitors
 

NO REQUIREMENT FOR ENTRY PERMIT TO THE UK FOR EU FAM RESIDENCE CARD HOLDERS

Many of our clients who are lawfully resident in the State as the family members of EU citizens pursuant to Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). According to the EU Directive, such persons are entitled to travel to other EU Member States without the requirement to first apply for a visa. Article 5 (2) of the Directive makes this very clear;

“Possession of a valid residence card referred to in Article 10 shall exempt such family members from the visa requirement”

However, in practice, many clients experience difficulties in entering the UK without a visa. We have heard of a number of cases in which the EU family member was not permitted entry despite carrying the EU Fam residence card. Many complaints have been made to the European Commission against the UK in this regard.

Recently, the European Court of Justice has had an opportunity to hear a case directly on this point - 

Sean Ambrose McCarthy and Others v Secretary of State for the Home Department (Case C-202/13)

The judgement is very helpful to all those EU Family members travelling between UK and Ireland.

The applicant, Mr McCarthy, is an EU citizen holding dual Irish and British nationality. His wife is a Columbian national who holds a valid ‘residence card of a family member of a Union citizen’ (‘residence card’). This card was issued by the Spanish authorities, the State in which the couple and their daughter have been resident since 2010. The family also own property in the United Kingdom and travel there frequently. The legal issues in this case arose from the UK’s requirement that holders of such a residence card must apply for an entry permit (‘EEA family permit’) before they are permitted to enter the State. These family permits are valid for six months and must be renewed in person at a UK diplomatic mission, necessitating Ms McCarthy to travel from their home in Marbella to the diplomatic mission in Madrid. 

The family argued that the provisions in UK law infringed their rights of free movement. They brought a case to the High Court of Justice of England and Wales, who in turn referred a number of questions to the ECJ; namely whether Directive 2004/28 requires family members from non-Member States to obtain an entry visa prior to travel. 

In a decision issued on the 18th December 2014, the ECJ held that the above Directive was applicable in the current case, given that it applies to any EU citizen exercising their right to freedom of movement in another State. The Court further held that by requiring family members to obtain an entry permit in addition to their residence card, the UK was imposing “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive”. The Court ultimately found that the provisions could not be interpreted as to allow this additional burden, even if the objective is the prevention of borders being crossed illegally. In that instance, Member States may have a right to examine the authenticity of documents or data, but are not permitted to determine the conditions of entry for persons covered by the necessary provisions in EU law. 

Additional Reading:

Judgment in Case C-202/13: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160942&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=216851


Court of Justice of the European Union Press Release:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf

 

CHANGES TO IMMIGRATION STAMP 2 HOLDING NON-EEA STUDENTS' EMPLOYMENT ENTITLEMENTS; EFFECTIVE FROM 1ST JANUARY 2015

The Irish Immigration Blog

In September 2014, the Ministers for Education and Skills and for Justice and Equality announced changes to the work concessions for Immigration Stamp 2 holding non–EEA students, along with other reforms to the regulatory regime for international education. These changes came into effect on the 1st of January 2015.

Prior to these reforms; non-EEA students were permitted to work up to 20 hours per week during the college term and up to 40 hours during vacation periods. As these periods are set by the college itself, there have been severe variations between work entitlements of non-EEA students and as such, these entitlements have come under scrutiny. Due to the reforms put into effect by the Ministers for Education and Skills and for Justice and Equality, the working permissions have been standardised and is no longer reliant on the term and vacation periods set by the individual institution. Students holding a valid immigration stamp 2 are now permitted to work 40 hours per week for a 4 month period, which starts from the 1st of May until the 31st of August and also from the 15th of December to the 15th of January. At any times outside these dates, they will only be permitted to work 20 hours per week. The hours specified are the maximum that the student can work at any given week, even those whom have more than 1 employer. Employing a student beyond these permitted hours will be an offence under the Employment Permits Acts.

However, students who achieve an honours degree or higher are entitled to a 12 month extension to their stamp 2 visa and are permitted to work up to 40 hours per week during this time. Students who achieve an ordinary level degree are entitled to a 6 month extension. Students hoping to apply for this graduate scheme must have a valid stamp 2 permission and they must also provide a transcript of their final results from the awarding authority. If the extension is granted, the student may work without an employment permit and can be employed on contract, in an internship, or on probation. If employment is offered beyond the duration of the extension, an employment permit will be required.

Students who obtain an extension to their stamp 2 visa as a result of this scheme may engage in any form of employment they desire, although, they are not permitted to engage in self-employment or to work as taxi drivers. Furthermore, it is anticipated that more forms of employment will be added to this list of restricted activities during the course of 2015.

The implementation of these reforms has not been effected by the three week delay announced for the implementation of the new ILEP course list.

Karen Berkeley 
Brophy Solicitors

The Irish Immigration Blog

REQUIREMENT FOR ENTRY PERMIT TO THE UK FOR EU FAM RESIDENCE CARD HOLDERS

Many of our clients are lawfully resident in the State as the family members of EU citizens pursuant to Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). According to the EU Directive, such persons are entitled to travel to other EU Member States without the requirement to first apply for a visa. Article 5 (2) of the Directive makes this very clear;

“Possession of a valid residence card referred to in Article 10 shall exempt such family members from the visa requirement”

However, in practice, many clients experience difficulties in entering the UK without a visa. We have heard of a number of cases in which the EU family member was not permitted entry despite carrying the EU Fam residence card. Many complaints have been made to the European Commission against the UK in this regard.

Recently, the European Court of Justice has had an opportunity to hear a case directly on this point:

Sean Ambrose McCarthy and Others v Secretary of State for the Home Department 

(Case C-202/13)

The judgement is very helpful to all those EU Family members travelling between UK and Ireland.

The applicant, Mr McCarthy, is an EU citizen holding dual Irish and British nationality. His wife is a Columbian national who holds a valid ‘residence card of a family member of a Union citizen’ (‘residence card’). This card was issued by the Spanish authorities, the State in which the couple and their daughter have been resident since 2010. The family also own property in the United Kingdom and travel there frequently. The legal issues in this case arose from the UK’s requirement that holders of such a residence card must apply for an entry permit (‘EEA family permit’) before they are permitted to enter the State. These family permits are valid for six months and must be renewed in person at a UK diplomatic mission, necessitating Ms McCarthy to travel from their home in Marbella to the diplomatic mission in Madrid.

The family argued that the provisions in UK law infringed their rights of free movement. They brought a case to the High Court of Justice of England and Wales, who in turn referred a number of questions to the ECJ; namely whether Directive 2004/28 requires family members from non-Member States to obtain an entry visa prior to travel.

In a decision issued on the 18th December 2014, the ECJ held that the above Directive was applicable in the current case, given that it applies to any EU citizen exercising their right to freedom of movement in another State. The Court further held that by requiring family members to obtain an entry permit in addition to their residence card, the UK was imposing “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive”. The Court ultimately found that the provisions could not be interpreted as to allow this additional burden, even if the objective is the prevention of borders being crossed illegally. In that instance, Member States may have a right to examine the authenticity of documents or data, but are not permitted to determine the conditions of entry for persons covered by the necessary provisions in EU law. 

Additional Reading:

Judgment in Case C-202/13: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160942&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=216851

Court of Justice of the European Union Press Release:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf

Karen Berkeley

Brophy Solicitors

CASE SUMMARY: CA V REFUGEE APPEALS TRIBUNAL (2014) IEHC 504

On the 1st of October 2014, Barr J of the High Court directed that the decision of the Refugee Appeals Tribunal to refuse an asylum application to a Nigerian national be referred back to the Tribunal for a further decision before a different member of the Tribunal. The applicant in this case claimed that he was fearful of returning to his country on grounds of his sexuality. The High Court held that the Refugee Appeals Tribunal (RAT) fell short of its duty to give a clear, reasoned and rational decision for its refusal. 

Many aspects of the RAT decision were criticised by Budd J in this case. Budd J stated that the RAT did not take into account the country of origin information submitted by the applicant. The Tribunal had found that the applicant in this case was "unlikely to face persecution from State agents in Nigeria.” Budd J stated that this ran contrary to the information submitted by the applicant on his previous treatment in Nigeria that included beatings by police officers. Similarly, Budd J rejected the Tribunal’s finding that the applicant could relocate internally to the city of Lagos safely. The learned judge found that on the facts, such internal relocation was not a viable option for the applicant. The High Court instead found that there was strong evidence that homosexuals did not live openly in Lagos for fear of persecution. 

The Tribunal had stated that the applicant's reasons for not claiming asylum in the United Kingdom were not plausible. The Tribunal generally did not find the applicant’s story credible. Budd J however held that it is not sufficient to merely state that the applicant’s version of events was implausible; the decision of the RAT must be supported by reasons. 

The Tribunal had also stated that: "It is clear from the information provided by the applicant that he has not suffered any persecution for a Convention reason in Nigeria, nor is he likely to face persecution upon returning to his country of origin.” Budd J stated that this was not sustainable as the Tribunal failed to give adequate reasoning for this assertion. The learned judge also stated that there is no requirement on the applicant to prove that he is likely to suffer torture or inhumane or degrading treatment, rather the proof required is that he has a well-founded fear of torture or inhumane or degrading treatment. 

Budd J in the case granted leave to the applicant to seek certiorari of the decision of the Tribunal and he made an order quashing the decision of the Refugee Appeals Tribunal. Budd J directed that the case be referred back to the Tribunal for a further decision before a different member of the Tribunal.

Rebecca Keatinge

EMN IRELAND REPORT ON UNACCOMPANIED MINORS - 2014

The European Migration Network (EMN) Ireland last week produced a report detailing the policies, procedures and circumstances surrounding unaccompanied minors. Unaccompanied children can be defined as children who are not in the care of a responsible adult. The report coincides with a general upward trend in the numbers of unaccompanied minors in the EU and a decrease in the number of unaccompanied minors in Ireland. The primary reason for this was cited as economic factors. 

In the report, many of the shortcomings of the system are called into question. The report accepts that major improvements have been that have addressed the specific issues faced by these children. Prior to the reforms, unaccompanied children were placed in hostel-based care. The report notes that this was wholly inadequate as it failed to recognise that the children were already in a uniquely vulnerable position and hostel-based care was unsuitable for the needs of children. The report states that the lack of regional oversight and inconsistencies in care around the country have been improved on greatly in recent years. However, the report states that more resources are required outside the Dublin region and explain that there is a lack of comprehensive data on the situation facing children in rural Ireland especially. 

In recent years, TUSLA have been given the responsibility of supporting these children through foster care and residential placements. This is far more child-friendly than the hostel-style care in place before. The recent ease on the State resources (due to the reduction of unaccompanied children in Ireland) has contributed to the improvements in the system. 

There is one noteworthy recommendation contained in the report in relation to family reunification. There is no policy in Ireland for the repatriation unaccompanied children however the report recommends that there be follow up family reunification as part of the after-care of children. The report concedes that this is a difficult task as these children often have a general mistrust of people and therefore are unlikely to divulge any information about their family or country of origin. 

The report notes that the lack of legal status afforded to this group places them in a position of unique vulnerability. Often, the children are sent to Ireland to seek work or to reunite with family. It would seem from the report that the principle difficulty with the situation is that the unaccompanied children fall into the categories of children and immigrants. There is a natural tension therefore between the child protection concerns and the immigration concerns. It appears that greater legal recognition of the status of such unaccompanied children will afford them greater protection. It may also act to reduce their vulnerability, improve their quality of life and ensure that difficulties in regularising their status when they turn 16 are averted. 

Rebecca Keatinge 

MIGRANT RIGHTS CENTRE IRELAND REPORT - 2014

A recent survey conducted by the Migrant Rights Centre Ireland has revealed that 21% of undocumented migrant people in Ireland have lived here for over a decade. The survey is the first of its kind in Ireland. 540 migrants were questioned in the survey and opened up about their lives in Ireland, detailing their employment and family situations. It gives a clear snapshot of the lives that migrants are living in Ireland including the types of industries they work in and their emotional connections to Ireland. The research conducted by the MRCI has also shown that 81% of undocumented migrants in Ireland have been here for 5 years or more. 

The survey sheds light on the particular difficulties faced by migrant workers in Ireland. One account highlights the difficulties of being unable to travel. One respondent in particular was unable to return to his county of origin for his father’s funeral. On this basis, the report has drawn attention to the stark contrast between the Taoiseach’s condemnation of the treatment of the undocumented Irish in the US and his called-for change in treatment on humanitarian grounds with the treatment of undocumented in Ireland. It is clear that most migrant workers have financial and emotional ties in Ireland and share similar challenges to the undocumented Irish in the US. The Taoiseach’s inconsistency in this matter has therefore come under fire. 

With the survey also illustrating that a large proportion (one third) of those surveyed has children living in Ireland, a spokesperson for the MRCI has stated that the problem of undocumented workers in Ireland can no longer be ignored by the Government. 

The research has also shed some light on the educational attainments of the migrant workers in Ireland. It has noted that 53% of the respondents have obtained a third level qualification. This figure, coupled with the figure that 87% of those surveyed are working, acts to show that most migrants in Ireland are hard-working and educated individuals. 

This survey will hopefully act as an impetus for the Government to make some much needed reforms in the area of undocumented in Ireland. 

Rebecca Keatinge

FAMILY REUNIFICATION FOR REFUGEES – SUPREME COURT JUDGMENT IN AMXS V MINISTER FOR JUSTICE

The Supreme Court delivered a judgment on the 20th November 2014 which gives some clarification to the Minister’s decision-making process in respect of family reunification applications for refugees pursuant to Section 18 of the Refugee Act 1996. The case concerns a very typical scenario of our clients whereby the refugee applicant has a strong dependency/support relationship with his family members, but he or she may be not be in position to financially support them on their arrival in the State. Often the refugee applicant is still a student themselves.

The facts of the case

In May 2009, the Somali national applied to the Minister for family reunification in respect of his dependent mother and siblings. The Minister’s decision to refuse the application was challenged by way of High Court Judicial Review proceedings and quashed by Mr Justice Cross in February 2012. The Minister was then required to carry out a re-consideration of the application and further evidence of the family members’ ongoing dependency on the applicant was submitted. 

The Minister refused the applications for the second time in July 2012, finding that the family members were dependent but refusing the application on financial grounds, i.e. that they posed a risk of financial burden to the State if the application was granted. The decisions in respect of the Applicant’s mother and minor sibling were challenged before the High Court for the second time. The Applicant was successful before the High Court and the Minister then appealed the High Court’s decision to the Supreme Court.

The findings of the Supreme Court

The Supreme Court found that the Minister is entitled in a general sense to refuse family reunification applications under Section 18(4) on the basis of financial grounds, i.e. in cases where the applicant is not in a position to support the family members if they come to Ireland. This differed from the High Court’s finding that that the Minister could never refuse an application under Section 18 solely on the basis that the family members may be reliant on social welfare in the State. 

However, the Supreme Court emphasized that while the Minister could refuse an application on financial grounds, the Minister must properly apply the principle of proportionality to the case. 

Mr Justice Frank Clarke stated as follows;

“The obvious inference to draw is that the absence of financial support is to be an exclusionary factor in respect of general applications but is only to be a factor to be taken into account amongst others in the case of those to whom the family reunification provisions apply”

The Supreme Court emphasized that significant weight must be given to the fact that the Oireachtas has chosen to confer a special entry status on dependent members of the extended family of a refugee. 

“In that context, it is difficult to see, without more, the mere fact that there may be some limited cost to the State could be decisive.”

The Supreme Court then carried out a balancing exercise between the family rights of the applicant against the exposure to risks for the State. In this regard, it was stated as follows;

“in the absence of any specific factors in relation to these applicants, it is difficult to see how the weight to be attached, in the context of family reunification, to the general right of the State to control immigration, could outweigh the factors which favour family reunification in this case”.

It was confirmed that the courts should only interfere with the Minister’s exercise of his discretion when the Minister is clearly wrong, and in this case, Mr Justice Clarke confirmed “I am satisfied that the Minister’s balancing exercise is clearly wrong”.

It was therefore held the High Court was correct in finding the Minster’s decision was disproportionate and should be quashed. 

Karen Berkeley

Brophy Solicitors

OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge

Brophy Solicitors 

DELAYS WITH STAMP 2 RENEWAL APPLICATIONS

We have been dealing with several queries from students who are attempting to resolve their immigration matters through correspondence with the Student Review Group, but are experiencing significant delays in receiving a response. 

Students are generally unable to renew their permission with GNIB and are referred to Student Review Group at the Irish Naturalisation and Immigration Service (INIS) when they have a significant gap in their immigration permission or if there is an issue with their attendance. A specific Student Taskforce has been set up with a dedicated information webpage for the large number of students affected by the recent college closures. Details can be found here: http://www.studenttaskforce.ie/

Our own experience is that students are facing excessive delays in having applications to the Student Review Group (SRG) processed. In one such case we are dealing with, the student was required by GNIB to apply to Student Review Group after his college incorrectly reported his attendance to the GNIB. He has now been waiting one year and nine months for a decision and has faced serious difficulties supporting himself financially during this period as he has been undocumented and without permission to work. We are now in correspondence with the SRG on his behalf trying to resolve the matter and have threatened to issue High Court proceedings if we do not receive a decision on his case in the next seven days. 

In such cases, it is important that students do not simply cease studying when their permission expires and while their applications are being processed by Student Review Group. The basis on which Stamp 2 is issued is after all study, and if the student is no longer fulfilling the conditions of their stay, it may be open to Student Review Group to refuse a renewal application, even if there is a long delay in them issuing that decision. Students will generally be required to show their continued good attendance at college together with evidence of in date private medical insurance. 

Rebecca Keatinge

Brophy Solicitors 

UPDATE ON FAMILY REUNIFICATION OF DEPENDENT PARENTS

We were recently successful in an application for Stamp 0 made for dependent parents of an Irish national. We have previously faced difficulties in a similar case and the current case gives some indication of what factors may persuade the Department to grant permission tone case over another. 

These are cases where Irish citizen children apply for permission to reside in the State for their dependent parents, who are non-EEA nationals, demonstrating that they have the necessary financial means to support their parents and that their parents will not place financial burden on the State. They must demonstrate that their parents are in fact dependent on them financially, socially and emotionally. In several cases we have dealt with, dependent parents have severe medical conditions and health problems, and no viable options for care and support in their home countries.

The Irish Naturalisation and Immigration Service (INIS) Policy Document on Non-EEA Family Reunification is applied by INIS when considering and determining these cases. The policy places rigorous financial threshold on applicants, requiring the sponsor of two dependent parents to evidence an income of €75,000 to support the application. 

In a previous case we have dealt with, an application made by a sponsor in a strong financial position was refused and one of the reasons cited in the refusal was the fact that the parents were in the State unlawfully. In that case, medical evidence had been provided confirming that one of the applicant’s parents could not to undertake long haul flights and hence remained in the State after their permission had expired. Nonetheless, the fact of their unlawful residence was held against them. That case is currently subject of High Court litigation. 

In our recent case that was successful, the parents were also in the State unlawfully, their permission having expired while the application was pending. Medical evidence was also provided showing that they were not fit to fly. However, what appears to have been the factor that distinguished the recent case was that the sponsor clearly evidenced the very strong financial position and substantial income and therefore clearly established that the sponsor would have absolutely no difficulty supporting the dependent parents in the State. We were able to make convincing submissions that there could be no reasonable prospect that the parents would become a financial burden on the State and it appears that the financial position may have been a decisive factor in ensuring the application was successful. 

It is also noteworthy that this application was processed in just over three months, which was relatively quick. The clients are obviously enormously relieved at the outcome. 

Rebecca Keatinge

Brophy Solicitors

EU TREATY RIGHTS AND APPLICATIONS FOR NATURALISATION

We have recently made several applications for naturalisation on behalf of applicants who satisfy the reckonable residency criteria on the basis of their EU Family residence card. In these cases, the applicants have been issued with EU Family residence cards and Stamp 4 permission for five years on the basis that they are a family member of a Union citizen who is exercising their Treaty rights in the State. 

Ordinarily, the applicant is the spouse of a Union citizen who is working in the State. Several of these applications have been made prior to the applicant attaining five years permission to remain from the date of their actual grant of Stamp 4 permission by the EU Treaty Rights Section. For various reasons, they have sought to make the application earlier. We have made the argument on their behalf that they enjoyed an entitlement to reside since their date of marriage to the Union citizen and that their reckonable residency should be calculated from the date of marriage. 

Until recently we had encountered no difficulties with this submission. However in the last two weeks, we have received refusals in two such cases. In both of these cases, the Citizenship Unit have explicitly stated that EU family permission to remain is taken from the date such permission is granted ie not from date of marriage. In both cases we have responded to the Citizenship Unit asking that they urgently review the refusals, making the strong submission that as the family member of an EU citizen who has exercised EU free movement and who has been economically active in the State, the applicant enjoyed a right to reside from the date of marriage pursuant to Article 7 of Directive 2004/38EC, (the Directive) the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) (the Regulations). Our argument is that such permission was not contingent or conditional on making any application to the Minister; it was an entitlement derived from EU law. 

We have not had this type of response until now and it remains to be seen how the Citizenship Unit will deal with such applications going forward. While our legal arguments appear sound, on a practical level these refusals may cause difficulties for applicants and anyone in this position is best advised to ensure they are in a position to make a permanent residency application or an application for retention to keep their permission in date and enable them to maintain their permission beyond the five year EU Family card. 

Rebecca Keatinge

Brophy Solicitors

DELAYS IN DECISION-MAKING IN IMMIGRATION CASES

We were recently instructed by a very vulnerable single mother with significant mental health difficulties. She had previously been granted stamp 4 permission to remain in the State and we were instructed to assist with an application for renewal of that permission pursuant to section 47 of the Immigration Act 2004.

At the time we put in the application we had not yet received a medical report or medical records to substantiate our client’s significant mental health difficulties. Rather we submitted the application on a provisional basis relying on personal statements from the applicant and her daughter substantiating the difficulties she had had with serious mental illness and detailing the difficulties that she would face should she be expected to return to her country of origin. We had prepared detailed submissions to send to the Department setting out our arguments with respect of the mental health position and we were awaiting a medical report from our client’s psychiatrist before submitting these further submissions.

To our surprise and to our client’s enormous relief, before we had even received the medical report and records and finalised our further submissions, our client was granted an extension of her leave until 2017. Our client is extremely happy to have had her application determined so quickly. In fact our original letter was dated the 10^th of September 2014 and a positive decision was received 15 days later.

This is obviously a very positive development for our client especially given her vulnerability however it shows the considerable inconsistency in the timeframes within which applications are being dealt with by the Department.

While working on this case, we have also been in correspondence with the Department in relation to a case where the applicant has had an application for leave to remain pending since February 2009. We are now at the point of issuing High Court proceedings to compel the Department to make a decision. It is a little confusing that that type of application must wait five years to be determined while a renewal application can take just 15 days even when in the latter, all the information has not yet been provided to the Department.

We hope that the decision making process will become consistent and streamlined and more efficient in coming months. At present, it is unpredictable and difficult for applicants some of whom wait extremely long periods for a decision on vital matters such as their ability to remain lawfully in the State

Rebecca Keatinge
Brophy Solicitors

SUCCESS IN FAMILY REUNIFICATION APPLICATION

One of our clients received a positive decision this week in a long-running family reunification case we have been advising on. 

The application was made in September 2013 by a national of the Democratic Republic of Congo for family reunification with his wife. At the time of the application, the wife was a recognised refugee living in very difficult conditions in a refugee camp in Tanzania. She was also pregnant and gave birth in the refugee camp hospital in April 2014.

The application was well supported by documentation substantiating the relationship, the contact between the couple, the addition of a new born baby, and the dire conditions of the family members. Notwithstanding the documentation provided, DNA evidence was requested by the Department of Justice and Equality in order to satisfy them of the relationships between the parties.  This created a further delay as the family members had to travel a considerable distance to the capital in order to attend the designated clinic for testing.

Positive DNA results were received shortly after the testing and the application, just over a year since the application was made, has now been determined in the favour of our clients to their enormous relief.

Rebecca Keatinge
Brophy Solicitors

 

PROPOSED CHANGES TO THE STUDENT IMMIGRATION REGIME

Minister Frances Fitzgerald recently announced major reforms of the Student Immigration and International Education Sector. A policy statement entitled Regulatory Reform of the International Education Sector and the Student Immigration Regime is available on the INIS website and sets out the key reforms, the most significant of which appears to be proposed changes to the student work concession. 

The policy statement recognises the significant contribution that international students make to the Irish economy, which is estimated as in excess of €800 million. The policy proposes to introduce higher regulation of the third level education sector in Ireland to ensure that the sector provides high quality service and is not a route for a non EEA students to access the labour market in Ireland but rather a route to attain their personal education aspirations. The view of the Department of Justice & Equality is that some education providers have been acting as little more than “visa factories”. There is recognition in the policy that international students are in a vulnerable position but the main thrust of the policy is that the system is to be significantly reformed to create a robust regulatory environment. 

There are three pillars to the new regulatory framework. 

Under the first pillar, the Department proposes to replace the current internationalisation register, which specifies eligible programmes for non-EEA students and to replace it with an Interim List of Eligible Programmes for Student Immigration Permission (ILEP), which will be in place from the 1st of January 2015. 

The second pillar introduces an inspection and compliance regime such that INIS and the GNIB will have an enhanced inspection function. There is direct reference to the National Employment Rights Agency (NERA) becoming involved to investigate any abuse of the student work concession and there is also reference to involvement of the Revenue Commissioners and the Department of Social Protection. In addition there is a proposal to set up a compliance working group to focus on the student work concession. 

The final pillar is what we believe will be the most significant change for non-EEA students and is described in the policy as a “strengthening” of the terms of the student work concession. What this in fact amounts to is a restriction on the work concession. At present, non-EEA students attending a full time programme on the Internationalization Register are permitted to work up to 20 hours per week during term and up to 40 hours per week outside of term. It is the view of the Department that permission to work cannot be justified in all circumstances. The policy document proposes that from the 1st of January 2015, the work concession will be aligned and essentially restricted such that students can only work 40 hours per week during the months of May, June, July and August and from 15th of December to 15th of January inclusive. There will therefore be no flexibility as to when students work 40 hours per week and when they work 20 hours per week. The policy states that the set periods during which students can work 40 hours per week will be irrespective of the programme timetable. It is unclear how non-EEA students will be able to manage working and attending a full time course where the course runs during the summer months and how the new policy will work in practice. 

This policy document is the most significant reform of the student immigration regime since the changes implemented in 2011. They will have wide ranging impacts on non-EEA students seeking to come to Ireland after 1st of January 2015 and they will have a knock on effect on the visa application process and the financial requirements for new students coming to Ireland particularly in light of the proposed amendments to the work concession. To our mind, it is likely that students will struggle to financially support themselves through studies in Ireland if they are restricted in when they can work. It is unlikely that employers will be able to offer employment during set periods given that the set periods do not take account of the need for flexibility in the employment sector.

Further information on the changes can be found on the INIS website here. 

Rebecca Keatinge

Brophy Solicitors

Overhaul Of The Work Permit Regime

The Employment Permits (Amendment) Bill 2014 came into force on 1st October 2014 implementing significant changes to the employment permit regime in Ireland. Full details can be viewed the Department’s website which has now been updated to reflect the changes and this blog highlights some of the key changes. 

General Employment Permit

The General Employment Permit has been introduced and essentially replaces the previous Work Permit Employment Permit. There are three notable changes to this permit. 

Firstly the ineligible categories for employment permit list has been substantively amended. This list specifies occupations that are not eligible for a permit, in circumstances where the salary is under €60,000. The list is both more specific and expansive than the previous list and specifically names a broad range of occupations for which a work permit will not be available. Managers in a range of sectors including hospitality, health and retail are included together with a number of positions in financial administration. Several new occupations are included including legal associate professionals, estate agent and auctioneers and a range of technicians in the area of planning, architecture and engineering. A major change is the inclusion of chefs on this ineligibility list which covers chefs, butchers, fishmongers and bakers but makes an exception for executive chefs, head chefs, sous chefs and specialist chefs specialising in cuisine originating from a non-EEA state. This much expanded list is likely to have a wide ranging impact on potential applicants who may find that their occupation renders them ineligible for a work permit under the new provisions. 

A further change referred to in our previous blog post is the re-introduction of the 50:50 rule. In the guidelines the Department states that an employment permit will not issue unless at the time of application at least 50% of the employees in a firm are EEA nationals. The 50:50 rule is waived in the following circumstances: A start up company where the employer has been registered with the Revenue as an employer within the last two years and the employer has a letter of support from either Enterprise Ireland or IDA Ireland; an employment permit in force at the time of commencement of the 2014 Act i.e. the Act does have retrospective effect; where on the day of the application the employer has no employees and the foreign national would be the sole employee;

The final notable change is the re-introduction of the Labour Market Needs Test that it appears must be satisfied for all applications, although this is not expressly spelt out in the guidelines. We are seeking clarification on this point from the Department. The Labour Market Needs Test requires an employer to advertise the position for a specific period in order to establish that there are no Irish or EEA nationals available to take up the position. There are limited circumstances where the test need not be satisfied that are set out in the guidelines. 

Critical Skills Employment Permit

The Green Card has now been replaced by a Critical Skills Employment Permit. There have not been significant amendments to the eligibility criteria, however, the highly skilled eligible occupations list has been amended. There is again more precision and detail in the eligible occupations. It is still a requirement that when the annual remuneration is between €30,000 and €60,000 an applicant’s proposed occupation must be contained in the highly skilled eligible occupation’s list. Where the annual remuneration is over €60,000 the specific occupation is not relevant provided it is not included on the ineligible categories of employment list. 

Of note is the fact that an employment permit will not be granted to companies unless 50% or more of employees in the firm are EEA nationals at the time of application. There is again an exemption with respect of start up companies within three years of their establishment and which are supported by the Enterprise Development Agencies, Enterprise Ireland or IDA Ireland. 

Other changes

The new regime creates a number of new permits including a Sport and Cultural Employment Permit, an Exchange Agreement Employment Permit and an Internship Employment Permit. The system retains the dependence/partner/spouse Employment Permit, Intra-Company Transfer Permit and Contract for Services Permit and there is a specific Reactivation Permit, which is designed for situations where a foreign national, who entered the State on a valid employment permit but who fell out of the system through no fault of their own, can work legally again. 

It is now a requirement that business users make payments by electronic funds transfer but individuals can still make paper-based payments i.e. by cheque, bank draft or postal order. There are no notable changes in the fee structure. 

We will follow with interest how the new system operates in practice and provide further updates on our blog. 

Rebecca Keatinge

Brophy Solicitors

Immigrant Investor Programme Update

The Irish Immigration Blog

Individuals considering making an application under the Immigrant Investor Programme should be appraised of the current guidelines that apply a number of new criteria that must be satisfied for an application to be successful.

The most significant development is that investors must establish that they have a minimum net worth of €2 million. There is a specific net asset section on the application form that must be completed and applicants must also provide an explanation of all activities for the previous 12 months period indicating their income, investments and loans. It is clear that the Department requires a comprehensive picture of the applicant’s financial position over the last twelve month period so that they can be satisfied that the applicant has legally acquired a minimum net worth of €2 million. 

The eligible investments available to any applicant have not changed considerably and include one of six forms:- Immigrant Investor Bond, Enterprise Investment, Investment Fund, Real Estate Investment Trusts, Mixed Investment or Endowment. The current guidelines provide clarification and detail in relation to the various categories of acceptable investment. 

The same requirements still apply with respect to provision of evidence of funds for investment and evidence of the source of those funds. The Department will consider the following sources of funds:- business and investment activities, Deed of Sale, inheritance and divorce settlements. 

Evidence that the funds can be transferred to an Irish financial institution must be provided and there is now explicit reference in the guidelines to jurisdictions that have controls over the transfer of currency. Our own experience is that such controls may present an obstacle to certain applicants. 

Finally the good character requirement continues to apply. Any applicant as well as their nominated family members who are over the 16 years old must submit a statement of character from the police authorities of each country in which they have resided for six months during the 10 year period prior to making the application. 

The requirement that the individual evidence that they are of €2 million net worth is likely to limit the number of applicants eligible to apply under the scheme. Our own experience is that the Start Up Entrepreneurship Programme (STEP) is a more attractive alternative, requiring a minimum investment of €50,000. It remains to be seen whether a significant number foreign investors will avail of the investor scheme in Ireland when other countries offer comparable schemes that do not have such high financial thresholds.

Rebecca Keatinge

Brophy Solicitors

Recent Developments in Immigration

Updates from the Minister for Justice and Equality

On the 16th September 2014, Minister Fitzgerald announced new plans to increase the number of civilians carrying out key immigration functions in border management and registration roles. These jobs are currently within the purview of An Garda Siochana but as part of the Minister’s push to get more Gardai out on the streets, these roles are expected to be undertaken by an additional 80 civilian staff. The new programme will see civilians carrying out checks at both Dublin Airport terminals, as well as the transfer of the immigration permission registration function from An Garda Siochana to the Irish Naturalisation and Immigration Service of the Department of Justice and Equality (INIS). The Minister noted that the Gardai “will continue to provide core policing functions at the Airport and support the civilian staff as appropriate”. The full text of the Minister’s press release can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20major%20immigration%20civilianisation%20initiative>

On the 2nd September 2014, the Minister announced major reforms of the student immigration and international education sector. This move comes in the wake of a number of private college closures this year. The reforms aim to protect the interests of genuine students, while reducing instances whereby the immigration system can be abused. A recent policy statement sets out three primary pillars of reform: only accredited programmes will be in a position to enrol international students, inspection will be increased to ensure education and immigration standards are maintained, and the non-EEA student work concession will be altered to mitigate abuse. In the course of her statement, Minister Fitzgerald also warned those students affected by college closures earlier in 2014 to regularise their status in the State and ensure they were abiding by current immigration laws. The full text of the Minister’s press release, along with links to the policy statement of the Task Force, can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Ministers%20O%E2%80%99Sullivan%20and%20Fitzgerald%20launch%20major%20reform%20of%20student%20immigration%20and%20the%20international%20education%20sector>

Proposed reforms of Direct Provision Centres

Following increased media reportage into conditions in the State’s Direct Provision centres, in mid-August the Minister for Justice announced that a working group was to be established in the coming month to review the current system. The main issues outlined by the Minister include welfare payments, third-level education access, and support for children. Although Minister Fitzgerald has promised a more efficient application process would be in place by midway through 2015, she also ruled out the possibility of an absolute extension of the right to work to asylum seekers, citing the country’s unemployment issues as cause. While the establishment of a working group has been praised as a positive development by UN agencies, in more recent days that Minister has warned against “unrealistic expectations” in terms of reform. At present some 4,330 adults and children are being housed in Direct Provision centres around the country. Pressure is mounting on the Government to improve living standards, with recent weeks seeing asylum seekers protesting the system and calling for an end to Direct Provision entirely. Full articles on the above can be found at: The Irish Times “Government to review conditions for asylum seekers” 12th August 2014 <http://www.irishtimes.com/news/social-affairs/government-to-review-conditions-for-asylum-seekers-1.1894079> The Irish Times “Minister warns against unrealistic expectations on direct provison” 25th September 2014 <http://www.irishtimes.com/news/politics/oireachtas/minister-warns-against-unrealistic-expectations-on-direct-provision-1.1940425> The Irish Times “Asylum seekers mount protest at Cork direct provision centre” 15th September 2014 <http://www.irishtimes.com/news/ireland/irish-news/asylum-seekers-mount-protest-at-cork-direct-provision-centre-1.1929294>

Immigration, Residence and Protection Bill 2010

As part of her pledge to speed up the asylum process in the coming year, Minister Fitzgerald has committed to the introduction of a Single Procedure Mechanism, as distinct from the provisions of the currently dormant Immigration, Residence and Protection Bill. The Single Procedure Mechanism would allow claims for asylum and subsidiary protection to be made simultaneously. At present, claimants must first seek asylum, regardless of whether they meet the stringent criteria for refugee status. This procedure could theoretically save claimants years of waiting, and has been campaigned for by numerous organisations including the Irish Refugee Council and NASC. Publications and press releases on the above can be found at: “Press release: NASC welcomes renewed government commitment to reform of direct provision” 12 August 2014 <http://www.nascireland.org/latest-news/press-release-nasc-welcomes-renewed-government-commitment-reform-direct-provision/> “Roadmap for Asylum Reform” < http://irc.fusio.net/wp-content/uploads/2011/08/Roadmap-for-Asylum-Reform2.pdf> 


Brophy Solicitors

APPLICATIONS FOR DE FACTO PERMISSION IN IRELAND

Since 21st March 2014, INIS have declined to accept applications for De Facto Partnership Immigration Permission in circumstances where the Applicant is present in the State on a C Visit Visa or on foot of the Irish Short Stay Visa Waiver Programme. INIS further clarify on their website that they will not accept applications from persons who are unlawfully present in the State and/or are in the asylum/protection streams at the time of making the de facto application. 

We have several clients who submitted applications while they were lawfully present in the State but since their applications were submitted, their permission has expired or lapsed. We therefore recently sought clarification from INIS as to whether such applications will be processed, despite the current position of the applicant as someone not technically lawfully present in the State. 

INIS have now clarified that applications for a De Facto Relationship Immigration Permission received from non EEA nationals resident in the State who were legally present in the State at the time of application will continue to have their applications processed even in instances where they allow their existing registration or immigration permission to expire. 

In addition, INIS provided important clarification on the position of non visa required nationals. INIS confirmed that applications from non visa required nationals will be accepted provided that on the date the application is received the person concerned has a landing stamp endorsed on their passport permitting lawful entry to the State which is usually afforded for up to 90 days under visitor conditions. 

These changes and our own experience of dealing with many of these applications confirm an increasingly restrictive approach of INIS to De Facto applications. It is our own position that cases must be considered and determined on a case by case basis and absolute restrictions on certain individuals making the application, for example those in the asylum or protection streams, are legally questionable.

Brophy Solicitors