Visa-free travel for refugees from 20 European countries suspended

The Irish Government announced on Monday 18th July 2022 that they would temporarily suspend visa-free travel for refugees between safe European countries for a period of 12 months.

The European Agreement on the Abolition of Visas for Refugees came into force in Ireland on October 29, 1969. Under this agreement, signatory countries issue Convention Travel Documents to refugees. These documents then allowed refugees to travel to the other signatory countries without a visa or prior clearance if they were travelling for the purpose of visiting only and were visiting for a period of less than three months.

The visa exemption applies to holders of a Convention Travel Document issued by Belgium, Czech Republic, Denmark, Finland, Germany, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Spain, Sweden, or Switzerland.

The Government has agreed to temporarily suspend this arrangement for a period of 12 months as allowed for under Article 7 of the Agreement. The suspension will come into effect from noon on Tuesday the 19th of July 2022.

Refugees with Convention Travel Document can still travel to Ireland but they will need to apply for a visa under the standard visa procedures. The visa-free exemption that came into effect in February of this year for Ukrainian nationals will not be affected by this decision.

The Government considers this measure necessary to protect “the integrity” of the international protection system as there has been a significant increase in individuals applying for protection despite having already been granted such protection by another European state.

When an individual applies for protection the International Protection Office checks every applicant over the age of 14 against the Eurodac database. This is an EU database that stores the fingerprints of international protection applicants or people who have crossed a border illegally. Ireland is then notified by Eurodac if the applicant has been granted International Protection in another EU Member State.

It was reported that from January 2021 to January 2022, there were 760 applications for International Protection in Ireland where the applicant had already been granted protection in another state. It was found that 479 of these applications belonged to refugees that had been previously granted protection from an EU state with visa exemptions.

The visa exemption is important for refugees who have family members across Europe as the exemption allows them to visit their family for short periods of time. We are available to assist and advise refugees who are affected by the suspension of the visa exemption.

Separation, Divorce, and EU Treaty Rights

We are regularly contacted by non-national clients seeking advice and assistance in respect of their immigration status in the circumstances where they have either separated or divorced from their EU citizen spouse. While the technical differences between an informal separation on the one hand, and a full and final divorce on the other, can seem irrelevant in the personal lives of those involved, the immigration ramifications of each are very different.

This blog post will give an overview of the law on EU Treaty Rights and how a separation and divorce impacts rights of residence, and what options may be open to persons in those situations. While the focus is on spouses, we also outline what happens when ‘de facto partners’ separate. While the 2004 Directive applies to EU family members, we are concerned here only with non-EU family members. This blog will give readers a simple and quick guide to their immigration issues, and how we may best assist them in regularising their status.

Rights of Residence – Directive 2004/38/EC

EU Treaty Rights refers to the rights of residence of family members (irrespective of nationality) of EU citizens exercising their EU free movement rights in a host country. Residence rights within the European Union for Union citizens stem from various provisions of EU law relating to their ‘Citizenship of the Union’, and the free movement of workers, particularly Articles 20, 21, and 45 of the Treating on the Function of the European Union (the ‘TFEU’).

Those Treaty provisions are then detailed in more specific legislation, specifically Directive 2004/38/EC (the ‘2004 Directive’). Article 3(1) of the 2004 Directive provides that it “shall apply to all Union citizens who move to or reside in a Member state other than that of which they are a national, and to their family members as defined [in Article 2(2)] who accompany or join them”.

Article 2(2) defines “family member” to include spouses and registered partners, parents and grandparent, children and grandchildren. However, there are other categories of persons – such as cousins, aunts and uncles – who may avail of EU Treaty Rights under Article 3(2)(a). Persons in relationships, although not married or registered, may seek residence as being in a “durable relationship, duly attested”, commonly known as ‘de facto partners’.

The residence rights of EU citizens and their family members contained within the 2004 Directive are implemented into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (the ‘2015 Regulations’), as amended. Once applications for residence under the 2004 Directive and 2015 Regulations are made and approved, the family member concerned will be given a Stamp 4 EU FAM permission by the EU Treaty Rights Unit of the Immigration Service Delivery. This permission is typical for 5 years, after which, they may apply for Permanent Residence.

However, what happens if, for example, you are the non-national spouse of an EU citizen and you separate or divorce within the period of your 5-year permission?

Separation, Divorce, and ‘Retained’ Rights of Residence.

Separation

The 2004 Directive is silent as to what happens to the residence rights of a non-national spouse who separates from the EU spouse, but nonetheless remains legally married to them. However, it is the Directive’s silence that the Irish and EU Courts have considered in concluding that simple separation does not result in a loss of residence rights. Separation also generally results in residing in separate addresses, and there is no requirement in the 2004 Directive for spouses to reside together.

In Case C-244/13 Ogieriakhi v The Minister for Justice and Equality, the Court of Justice of the European Union (‘CJEU’) considered the issue of separate addresses following separation, confirming that there is no requirement to reside together. To hold otherwise – in the opinion of the CJEU in the context of permanent residence under Article 16 – would:

“ deprive [the 2004 Directive] provisions of their effectiveness…if Article 16(2) of the 2004 Directive were to be interpreted literally, a third-country national could be made vulnerable because of unilateral measures taken by his spouse, and that would be contrary to the spirit of that 2004 Directive, of which one of the objectives is precisely — according to recital 15 thereto — to offer legal protection to family members of citizens of the Union who reside in the host Member State, in order to enable them, in certain cases and subject to certain conditions, to retain their right of residence exclusively on a personal basis”

Even where there is a formal separation agreement just short of divorce, a person’s residence rights are not negatively impacted or otherwise invalidated. The CJEU in Case C-287/83 Diatta stated, in the context of pre-2004 Directive free movement legislation, that “… the marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date”. This rationale was applied to the provisions of the 2004 Directive by the CJEU in Case C-40/11 Iida wherein the Court held that:

“…the marital relationship cannot be regarded as dissolved as long as it has not been terminated by the competent authority, and that is not the case where the spouses merely live separately, even if they intend to divorce at a later date. … In the present case, the marriage of Mr and Mrs Iida has not been dissolved by the competent authority, so that Mr Iida may be regarded as a family member of his spouse within the meaning of that provision of Directive 2004/38”

The caselaw of the CJEU is clear that informal separation – even if there is a formal separation agreement and separate addresses – does not invalidate a person’s rights of residence so long as the EU citizens remains in the State in exercise of their EU rights. Divorce, on the other hand, does have significant ramifications.

Divorce

A family member who divorces their EU citizen spouse may face having their right of residence in Ireland revoked unless the criteria for ‘retention’ of residence under the 2004 Directive are satisfied. While the 2004 Directive is silent on issues of simple separation, it does expressly provide for the situation of divorce and how a family member may remain in the host State independently following a divorce.

Firstly, the risk of revocation is simply due to the ‘derivative’ nature of residence rights. A non-national spouse gets a right of residence by virtue of being the spouse of an EU national. If they are no longer a spouse, then they no longer have a right of residence. Article 13 of the 2004 Directive, however, provides for an independent right of residence following divorce if the criteria are met. If the criteria are not met, the right of residence is revoked and the person liable to removal.

Article 13(2)(a) of the 2004 Directive provides that a divorce “shall not entail the loss of a right of residence of a Union citizen’s family members who are not national s of a Member State where:

“prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State”.

This means that so long as the marriage lasted at least three years, with one of those years spent in the host State, then an independent right of residence may be obtained. There are other circumstances in which a right of residence may be obtained, such as Article 13(2)(c), which states that a right of residence will not be lost in case of divorce if the divorce was “warranted by particularly difficult circumstances, such as having been the victim of domestic violence while the marriage or registered partnership was subsisting”.

It is important to note that the three-year requirement does not apply to cases where the divorce was due to “particularly difficult circumstances”. The three-year requirement also does not apply in cases where the is an agreement between former spouses for the custody of children (Article 13(2)(b) or rights of access to a child (Article 13(2)(d).

Importantly, however, is timing. The divorce must have been initiated either when the EU citizen was still in the State, or within a ‘reasonable period’ after the spouse has left the State (as per CJEU decision in X v Belgium Case C-930/19). The CJEU has not given guidance on what amounts to a ‘reasonable period’, but our observation on this case is ‘reasonable period’ may be 6 – 12 months post-departure, but this could be longer depending on the circumstances.

The default position is therefore that, if you have divorced your spouse and were married for three years with one year spent in the State, you may retain your residence independently so long as the divorce was initiated when the EU spouse was in the State, or within a reasonable period following their departure from the State. If you divorced and were not married for three years, but it was done on grounds of domestic violence (or there is custody/access arrangements), you may still retain your residence independently.

If none of these criteria are met and you divorced (say after two years marriage, no children etc.), your right of residence may be lost and you will be subject to removal (a separate process which will consider your personal circumstances in deciding to either issue a removal order, or grant a discretionary permission to remain on an independent basis).

Relationship breakdown and De Facto Partners

The 2004 Directive does not provide for any retention rights for persons who were the ‘de facto partner’ of a Union citizen. If the relationship ceases, so too does the right of residence without any express provisions in the 2004 Directive or the 2015 Regulations for a ‘retained’ right of residence. In such a case, the person concerned must notify the Immigration Service and they will have their residence card revoked and their circumstances assessed by the Immigration Service in deciding whether to issue a removal order or be issued with a discretionary permission to remain.

The above is not a substitute of legal advice in respect of your personal circumstances, and rights of residence under EU law are vast and complex. Always seek independent expert legal advice, and we are here to provide it. We have assisted dozens of people in regularising their status following familial break-down, even in some of the most complex of EU Treaty Rights cases. Get in contact to arrange a consultation and we shall provide you with the right advice for your circumstances.

Automatic Extensions – An explainer for Employees and Employers

We have been consistently approached by employers and employees – particularly HR associates – seeking information, advice, and clarity, over the operation of the automatic permission extensions announced by the Minister for Justice since the start of the pandemic. The automatic extensions are unique, and highlight practical difficulties involved in immigration compliance.

As with every aspect of the Irish immigration system, the documentation side of immigration control and compliance can be a confusing landscape, such as the relationship between permissions, visas, employment permits, IRP/GNIB cards and ‘stamps’, and this has been clearly been the case for people seeking to navigate what they can and cannot do under the automatic extensions.

We have set out below a summary explanation as to what the automatic extensions are, how they operate, and the employment implications involved.

            Immigration Law – the Basics of Permissions.

Firstly, it must be understood that the primary basis for determining whether a non-national is lawfully in the State is the question of whether they have a valid permission (which effectively acts as an authorisation to be in the State) granted by or on behalf of the Minister for Justice. So long as a non-national has a valid permission, they are in the State lawfully. This is made clear by Section 5 of the Immigration Act 2004, which provides that “No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given to him or her after such passing, by or on behalf of the Minister”.

The Minister has both a statutory and executive power to grant, renew, vary, or revoke permissions. Following from this, the Minister may attach conditions to an individual’s permission, which will determine their employment entitlements or other restrictions. An example would be a student with a valid permission on Stamp 2 conditions, meaning they are here lawfully for the purposes of study but can only work 20 hours per week in certain times of the year. Another instance would be an individual with a valid permission on Stamp 4 conditions, which typically allows for full-time employment without the requirement of an employment permit.

Once an individual has a valid permission, this will generally be reflected in an IRP – an Irish Residence Permit – and is a card with the details of the person’s permission thereon, including their employment entitlement. However, the IRP is not the lawful basis of the individual’s residence, it is merely an administrative requirement under Section 9 of the Immigration Act 2004 to possess one. It is not the instrument or mechanism which authorises residence in the State. The absence of a valid IRP does not mean the individual’s underlying permission is invalid. So long as the permission validly exists – even without an IRP – the individual is still in the State lawfully and work accordingly, depending on the conditions attached to the permission.

Automatic Extensions.

During the beginning of the COVID-19 Pandemic, immigration registration offices around the country closed, including the Burgh Quay registration office in Dublin. This meant that many people could not renew their permission. In light of this, the Minister – pursuant to her executive powers – announced an automatic permission extension, typically on the same conditions as the person’s original permission. This meant that a person’s Stamp 2 permission was automatically renewed as a matter of law on the same Stamp 2 conditions. The same case for Stamp 3, Stamp 4, Stamp 5 etc.

The latest – and current – permission extension was announced on the 17th December 2021. The Minister’s announcement, as outlined on the Immigration Service website, states the following:

“This temporary extension of immigration permissions means that people who held a valid permission to be in the State in March 2020 are legally permitted to remain until 31 May 2022, even if their Irish Residence Permit (IRP) card has expired and they are awaiting a new one. Renewal is on the same basis as the existing permission and the same conditions will continue to apply.”

Persons who held a permission after March 2020 – such as newly arrived students – are also captured by previous automatic extensions. By announcement dated the 24th December 2021, the Immigration Service Delivery issued a statement titled ‘Notice to Employers regarding temporary extension of permissions announced on the 17th December 2021’. This notice states that

“This temporary extension of immigration permissions means that people who held a valid permission to be in the State in March 2020 are legally permitted to remain until 31 May 2022, even if their Irish Residence Permit (IRP) card has expired and they are awaiting a new one. Renewal of the permission is on the same basis as the existing permission held and the same conditions will continue to apply. Those covered by the extension are entitled to remain, reside and work in the State if their previously granted permission allowed them to do so.”

The automatic permission extensions have given much needed relief to many non-nationals and their employers. They have temporarily removed the burdensome and stressful requirement of seeking an appointment to renew the permission, and instead allows many people to remain lawfully in the State, and lawfully employed (if applicable) while they make attempts to secure a new IRP.

The current extension expires on the 31st of May 2021. For persons who do not renew their permission before that date, or if there is not a new extension, they may then be unlawfully in the State. As mentioned above, a permission is what determines the validity of a person’s residence in the State. No valid permission means no valid residence and no right to work. Despite the respite afforded to the Immigration Service by way of the automatic extensions, there are still significant delays in obtaining new IRP cards and renewing other permissions, with some waiting months to secure an appointment or receive a new IRP.

Key for Employers

A sound understanding of the automatic extensions and the legal status of a permission, an IRP, a stamp, etc. is vital in knowing whether a person may continue working beyond the expiration date of their IRP. A number of persons have been unfairly dismissed from employment due to not having a valid IRP but having a valid permission allowing employment, with same evidenced by a passport stamp from a time when the automatic extension announcement was applicable to them. Employers in that situation may face claims in the Workplace Relations Commission for unfair dismissal or discrimination actions under employment protection legislation.

So long as a person has a valid permission authorising employment, even without a valid IRP, then they may take up or continue employment, even if the permission exists by virtue of the automatic extensions. This is made clear by and expressly stated in the Minister’s announcement for employers dated the 24th December 2021. In any case, employers should be slow to dismiss employees on immigration compliance grounds, particularly in the unique situation involving automatic extensions – which we accept is complicated for those unfamiliar with immigration compliance to understand – without having first obtained specific legal advice on immigration and employment rights.

If you have been impacted by employment issues – either as an employer or an employee – feel free to get in contact with us and we are happy to advise employees on their employment rights, and employers on their employment obligations.

UPDATE: Regularisation Scheme Criteria

The Department of Justice have finally today (13th January 2022) released the detailed criteria for the Regularisation Scheme (the ‘Scheme’) and confirmed that applications can be made from the 31st of January 2022 for a period of six months. We have outlined below in summary the criteria for the schemes, the fees involved, and some of our own comments on the detailed terms of the Scheme. We have written previously on the Scheme and those blog posts can be found on the ‘News’ section of our website.

The purpose of the Scheme is to “provide residence permission to persons who are living in Ireland, and have been doing so for a longer period of time without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be ‘long-term undocumented’”.

The Scheme also outlines that asylum seekers will be considered in a separate regularisation Scheme which will be published on the website of the International Protection Office (ipo.gov.ie). As soon as the Scheme applicable to International Protection applicants is available, we will post about it here and inform all our eligible clients. Persons who are in the ‘Section 3 process’ are eligible for the Scheme, so too are persons already the subject of a Deportation Order.

            Eligibility

The Scheme sets out who is eligible to apply and what fees are involved for each application and what happens when an application is approved or refused.

A person submitting an application on their own behalf is known as the ‘Principal Applicant’, and will include persons submitting applications on behalf of an ‘Eligible Family Member’, which will generally

be parents on behalf of their eligible children etc. The Principal Applicant must be 18 years or older.

Eligible Family Members include:

  • The spouse, civil partner, or de facto partner of the principal applicant and living with the applicant for a period of at least two years immediately prior to the opening of the Scheme on the 31st January 2022.
  • The direct descendants, adopted children, or stepchildren, of the principal applicant or of their spouse, civil partner, or de facto partner. Children up to 23 are included and living with the principal applicant or their spouse etc., and children 18 – 23 must be living with the principal applicant or their spouse etc. for a period of at least 2 years prior to the application (children who are age 18 and married but apply in their own right).
  • Adult children above the age of 23 must make their own applications as principal applicants unless they require the close personal care of the principal applicant due to disability etc.

For the purposes of the Scheme, ‘children’ include stepchildren and adopted children and evidence of the relationship must be provided in accordance with the provisions of the Scheme.

 

In terms of the required period of undocumented residence, a Principal Applicant must have been residing in the State for a continuous period of four years without a valid immigration permission. In cases where the Principal Applicant includes a minor under the age of 18 in their application, the period is reduced to three years. All adult Eligible Family Members included in an application made by a Principal Applicant must have been continuously living in Ireland without a valid immigration permission for a period of two years.

Certain periods of residence covered by a valid immigration will be disregarded when calculating the relevant period. A short-term visitor permission will be disregarded and so too will any extensions of that permission where such extension was pursuant to the blanket extensions granted by the Minister for Justice in light of the COVID-19 pandemic.

The Scheme opens for applications on the 31st January for a period of six months, ending on the 31st July 2022. Applications received thereafter will not be processed, and applications must be made online and not by post. There is a fee of €700 for a ‘family unit application’ which includes the Principal Applicant and their spouse, civil partner, or de facto partner and any children up to 23 years of age. An individual application incurs a fee of €550. The fees must be paid at the time of making the application and are non-refundable.

If an application is approved, all persons included in the successful application will receive a Stamp 4 permission initially valid for a period of two years. This permission will be renewed for a further three-year period subject to compliance with the conditions attached to their permission, which will be outlined in detail in the decision letter. Successful applicants (excluding children under 16) must register their permission in accordance with Section 9 of the Immigration Act 2004. Once registered, the persons concerned will receive an Irish Residence Permit (‘IRP’) and still be subject to the standard €300 registration fee (excluding children under the age of 18).

If an application is rejected, the persons concerned can apply for an appeal of the refusal decision within 30 days of the date the decision was issued. An appeals officer may either confirm the decision, or grant the application and issue a permission on the above terms. If the appeal is refused, the Scheme states that the person concerned “will be referred for further consideration of their case by the Immigration Service in accordance with the relevant domestic law and the European Convention on Human Rights”. It is therefore not clear what will happen following an unsuccessful appeal, and it will greatly depend on the immigration history of the person concerned.

For instance, a person who previously had EU Treaty Rights may have their case forwarded to the relevant Unit or Division on accordance with the Chenchooliah decision and the European Communities (Free Movement of Persons) Regulations 2015, as amended. Other persons may receive a proposal to deport under Section 3 of the Immigration Act 1999 (for those who do not already have a deportation order in place).

            What about revoked permissions?

 The Scheme does not outline whether persons who have had their permissions revoked will be eligible to apply. However, it is our view that such persons can apply. While the Scheme refers to ‘undocumented’ persons, it appears that the key question is the presence or absence of a valid permission. For instance, a person who was granted EU Treaty Rights 5 years ago and received a Stamp 4 EU FAM permission would not be considered, in the general sense, to be ‘undocumented’.

However, if such a person had their permission revoked retrospectively, they may still may not be considered undocumented but their permission is considered to be invalid. Therefore, a permission with a revoked permission should be eligible under the Scheme where their documented presence in the State is effectively nullified by a decision of the Minister to retrospective revoke their permission to a previous point in time.

We have already advised a number of people on their eligibility for the Regularisation Scheme. If you wish to receive advise on your eligibility for the Scheme, please get in touch and we can arrange a consultation. Even if you are not eligible for the Scheme, we can advise you of any alternative options which may be reasonably open to you in your personal circumstances.

 

 

Employment Permits and Undocumented Migrants – Insights from the Courts.

We have been consistently approached by persons seeking to regularise their immigration status in the State on the basis of having been offered a job which is eligible for an employment permit, but having had that application rejected on the basis of their undocumented status. In other situations, we have provided advice to clients and prospective employers that their undocumented status is not an automatic barrier to applying for an employment permit when they mistakenly believe otherwise.

 

Section 12(1)(i) of the Employment Permits Act 2006 states that the Minister “may refuse” to issue an employment permit if “[t]he foreign national in respect of whom the application is made has landed in the State without the permission of the Minister for Justice and Equality and that permission is granted on the condition that the foreign national concerned shall not be in employment in the State”.

However, quite helpfully, the Courts have provided very useful guidance and insights into the discretionary powers used in deciding employment permit applications and have confirmed that being undocumented in Ireland (i.e., not having a permission) is not an automatic bar to applying for – and being granted – an employment permit. Additionally, there is no barrier to receiving an employment permit where a person already has a form of status allowing full-time employment, such as a stamp 4, in situations where that stamp will inevitably be revoked.

 

On the 21st December 2021, the High Court confirmed again that being in the State without permission is not an automatic bar to being granted an employment permit. This decision follows a line of clear and specific case law on these issues. We have set out below a summary of the current position in Irish law, showing clearly that undocumented migrants can apply for – and be granted – an employment permit, and so too can persons who already have a Stamp 4 permission in certain circumstances.

Undocumented migrants and employment permits

Very recently, on the 13th December 2021, the High Court in Yeasin v The Minister for Business, Enterprise and Innovation [2021] IEHC 821 held that the Minister’s refusal to issue an employment permit because the applicant was in the State without permission was incorrect. In that case, the applicant was issued a stamp 4 EU FAM residence card on the basis of EU Treaty Rights. However, that residence card was revoked because his wife had left the State and because his marriage was deemed to be one of convenience. Just days after the decision to revoke was made, he applied for a Critical Skills Employment Permit.

The Minister for Business refused the application on the basis that, because his residence card was revoked, he was in the State without the permission of the Minister for Justice. As per the Employment Permits Act 2003 – 2014, he sought an internal review of that decision. However, his review was also unsuccessful. The review decision stated that because he was in the State without the permission of the Minister for Justice, “it was not possible to issue an employment permit”.

The negative review decision was challenged in the Courts by way of Judicial Review. The High Court held that the language used by the Minister (i.e., that “it was not possible to issue an employment permit”) meant that the Minister unlawfully fettered their discretion afforded by Section 12(1)(i) of the Employment Permits Act 2006, which states that the Minister “may refuse” an application for an employment permit if the applicant does not have a current permission. The language used in the Act clearly provided a discretion – the Minister was not obliged to refuse the employment permit, or not constrained by the absence of a permission, as suggested by the language used in the negative review decision.

The Court’s decision in Yeasin is a continuation of previous consistent case law that the absence of a valid permission is not an automatic bar to being granted an employment permit. In Ling and Yip Limited v The Minister for Business, Enterprise and Innovation [2018] IEHC 546, High Court similarly held that the Minister acted unlawfully in refusing an employment permit on the basis that the applicant did not have a valid permission to be in the State. The applicant in Ling and Yip Ltd applied for an employment permit, which was refused, and a review of that decision was also refused. In the refusal decision, the Minister stated that because the applicant did not have a current permission to be in the State, “an employment permit cannot be issued”.

Like the decision in Yeasin, the Court stated that the language used by the Minister in the negative review decision demonstrated an unlawful fettering of the discretion provided by Section 12(1)(i) of the Employment Permits Act 2006.

Migrants with Stamp 4 permission

It is generally more common for an undocumented person to seek an employment permit than a person who is already in the State on the basis of a Stamp 4 permission, which entitles the holder of such permission to work full-time without the requirement of an employment permit. However, the situation of a Stamp 4 holder applying for an employment permit is not unheard of. This was the situation in the recent (3rd March 2021) Court decision of MD Liton Hossain v The Minister for Business, Enterprise and Innovation [2021] IEHC 152.

Mr. Hossain had a Stamp 4 EU FAM on the basis of being the spouse of an EU national. However, his spouse had left the State and so his residence card was eventually due to be revoked per the European Communities (Free Movement of Persons) Regulations 2015. However, before his card was revoked, he applied for an employment permit in order to regularise his position (knowing that his residence card was eventually going to be revoked). However, the Minister for Business refused his application on the basis that he was not a person requiring an employment permit due to the Minister’s interpretation of Section 2(10)(d) of the Employment Permits Act 2006.

The Court, however, held that just because a person is in possession of a permission which permits full-time employment, that does not prevent them from applying for – and being granted – an employment permit. This is because the Minister retains a discretion to grant an employment permit under Section 8 of the Employment Permits Act 2006, which provides – in the words of the Court –  “a wide discretion in the Minister to grant employment permits, subject only to the provisions of the sections and subjections stated therein”, none of which make reference to excluding a non-national with a permission entitling them to work in the State”. Similarly, Section 12 of the Employment Permits Act 2006 – which sets out a large number of grounds on which the Minister may refused to grant an employment permit – does not include as one of the grounds for refusal the fact an employment permit applicant has a permission entitling employment.

In a similar case, the same conclusion was reached. In Singh v The Minister for Business, Enterprise and Innovation [2018] IEHC 810, the applicant had a Stamp 4 EU FAM based on being the spouse of an EU national. However, his residence card was revoked on the basis of his divorce and his spouse’s departure from the State. While is EU Treaty Rights review was on-going – and he had a Temporary Stamp 4 at the time – he applied for an employment permit. This application was refused, and he sought a review, which was also refused, on the basis that his current Stamp 4 meant that he had no requirement for an employment permit.

For the same reasons as outlined above in respect of the Hossain case, the High Court overturned the refusal on the basis that it unlawfully fettered the statutory discretion afforded to the Minister for Business and that it is not stated anywhere in the Employment Permits Acts that a person holding a current permission entitling employment is excluded from applying for – and being granted – an employment permit.

Conclusion 

The recent decision of Yeasin once again confirms that undocumented migrants are fully entitled to apply for an employment permit and that their undocumented status is not an automatic bar. It must be understood, however, that being in the State without permission can still be a ground to refuse an employment permit application, but only lawfully so if reasons are provided and the statutory discretion is properly exercised as opposed to unlawfully fettered, as was the case in the above Court cases.

If you are undocumented and seeking to regularise your position, you can still apply for an employment permit. However, in light of the Regularisation Scheme, you should seek professional legal advice as to the most appropriate course of action which may be open to you. If you are a person who is in the process of having their EU Treaty Rights (or other permission) revoked, you may still apply for an employment permit.

If you require any advice or assistance in respect of your immigration status, we are here to help and guide you along the way.

Changes to Naturalisation Processing

The Immigration Service Delivery (“ISD”) has introduced “significant changes” regarding the number of proofs required to establish the identity and residence of a person applying for naturalisation (i.e., Irish citizenship), and the requirements in respect of providing a passport. These changes are in the form of guidelines published on the 31st December 2021, effective from the 1st January 2022.

Persons wishing to become Irish citizens based on their residence in the State may apply to the Minister for Justice for a ‘Certificate of Naturalisation’ under Section 15 of the Irish Nationality and Citizenship Act 1956, as amended. The 1956 Act sets out the requirements for naturalisation, and that the Minister retains an ‘absolute discretion’ in respect of her decision to grant or refuse a Certificate of Naturalisation.

The general residence criteria for a standard application for naturalisation is that the applicant resided in Ireland for a five-year period. This period is made up of one years’ continuous residence immediately prior to the application (subject to reasonable periods of absence), and then four years lawful residence in the previous 8 years (before the one-year period). There are different residence periods of different categories of persons, such as refugees and spouses of Irish nationals.

Applicants must provide proof of their residence in the State. The standard application criteria were that an applicant must submit three different kinds of proof of residence for each year being claimed as reckonable towards the residence requirement. For instance, an applicant might provide a doctor’s letter, correspondence from Revenue, and bank statements, for one year, and the same for previous years. The difficulty with this was that the Citizenship Division would often have an inconsistent approach as to what is and is not acceptable proof of residence, despite guidelines being provided in the application form (FORM 8).

However, on the 31st December 2021 the Minister published a notice titled “Scorecard approach being introduced for Citizenship Applications from January 2022”. These new Guidelines provided some clarification over which documents are, effectively, preferred by the Citizenship Division for the purposes of accepting proof of residence in the State. Effective from 1st January 2022, an applicant for naturalisation must reach a score of 150 points in respect of the documentary proof provided for establishing i) proof of identity, and ii) proof of residence.

Proof of identity

The new Guidelines state that the 150 points required for proof of identity can be achieved by provided certain documents which are assigned a points value. For instance, a ‘genuine’ in-date home-country passport is worth 150 points. Whereas a passport expired by no more than 365 days is worth 70 points. A passport expired by more than 365 days is worth 50 points. Where there is a deficit in points, an applicant may provide additional documentation to make up the balance of the required 150 points. Below is a table of the break-down of the assigned points value for the acceptable documentation:

 

Genuine Passport (Home Country) In date 150 points
Genuine Passport (Home Country) out of date less than 365 days, as per date of Citizenship application 75 points
Genuine Passport (Home Country) out of date less than 730 days, as per date of Citizenship application 50 points
Home country National Identify document issued in accordance with EU Regulation 2019/1157 In date 75 points
Home country National Identify document – other In date 50 points
Certificate of identity/emergency passport In date 50 points
laissez passer/Red Cross/UNHCR identify documents In date 50 points
IRP Card In date 25 points
PPS number/Card In date 25 points
Driving licence – with photo ID In date 10 points

 

The above points break-down apply equally to all types of applications for naturalisation, including those based on spouse of Irish national, refugees, Irish association, and applications made on behalf of minors.

            Proof of residence

As mentioned above, an applicant for naturalisation must provide proof of residence in the State. This was done by providing various documentation, although the Citizenship Division accepted certain documents in preference of others in an often arbitrary or inconsistent manner without much clarity as to what is and is not acceptable. However, the new guidelines provide for greater clarity in respect of which documents to provide. Like proof of identity, proof of residence must achieve a score of 150 points (for each year of residence). Each acceptable document for proof of residence will have an assigned points value, similar to documentation concerning identity.

For instance, a P60, Summary of Employment, and Notice of Assessments (all of which are issued by Revenue) have an assigned value of 70 points. A current account statement of six months duration for a particular year has a value of 50 points, and a mortgage statement also has a value of 50 points. Whereas utility bills (gas and electric) have a value of 10 points. Below is a table of the break-down of the assigned points value for the acceptable documentation:

 

One of …. P 60/Employment Detail Summary/Notice of Assessments 70 points
Department of Social welfare annual statement 50 points
Current a/c Bank statements: For each of the required number of years – annually Six consecutive months

 

(Must record a minimum of three POS transactions (with ROI or NI addresses) per month.)

50 points
Mortgage statement (Displaying 12 months of payments) 50 points
Rent agreement / registered with the local authority/ AHB / PTB (Proof of payment for six months) 50 points
Credit card statements: For each of the required number of years – annually Six consecutive months.

 

(Must record a minimum of three POS transactions (with ROI or NI addresses) per month.)

50 points
Primary / Secondary School in Ireland attendance record 100 points (for minors)
Third level College in Ireland – attendance record 25 points
Doctor / Hospital attendance record 50 points
Medical Practitioner Employment History Summary (Issued by HSE Hospitals, or certain Voluntary Hospitals) 25 points
Property tax – proof of payment 25 points
Car tax – proof of payment 25 points
TV Licence – proof of payment 10 points
Dog or Fishing licence – proof of payment 10 points
Electric supplier – service bill – proof of payment 10 points
Gas supplier – service bill – proof of payment 10 points
Medical insurance – proof of payment 10 points
Home or Car Insurance bills – proof of payment 10 points

 

The above points break-down apply equally to all types of applications for naturalisation, including those based on spouse of Irish national, refugees, Irish association, and applications made on behalf of minors.

 

Importantly, the Guidelines state that in cases where a person is unable to provide documentation to reach the required number of points, “engagement with the Department will need to be entered into”. The Guidelines also state the following:

“The responsibility is on the applicant to provide sufficient proof of reckonable residence for the period of residence claimed on the application form and the scorecard approach will ensure applicants have clarity on what exactly is required when they submit their initial application. The Minister must be assured the applicant has been lawfully resident in the State for the relevant claimed period. Failure to provide sufficient proofs of residence with the application will result in the application being considered ineligible. The Minister reserves the right to request original passports from applicants at any stage in the process.”

As these guidelines are new, it is yet to be seen how they will be implemented in practice. If you wish to make an application for naturalisation, feel free to contact us to arrange a consultation and we shall provide all the necessary advice and information to help guide you through the citizenship process for start to finish.

 

 

Update on EU Treaty Rights and Chenchooliah v The Minister for Justice & Equality.

In a recent blog post we spoke about the decision of the court of Justice of the European Union (“CJEU”) in Chenchooliah v The Minister for Justice and Equality and how this is impacting persons who have – or have previously had – EU Treaty Rights as family members of European Union citizens residing in the State. In our last blog post on this issue, we outlined that:

“The result of the CJEU decision means that persons who held EU Treaty Rights previously and have been issued with a proposal to deport or a deportation order under Section 3 of the Immigration Act 1999 could now have their cases assessed under the Removal Order provisions of the applicable Regulations instead. It would also appear that a deportation order previously issued in these circumstances is presumptively invalid.”

On the 13th May 2020, the Minister for Justice, in response to parliamentary questions on the matter, stated that the Department of Justice was

“…finalising the amendment of the European Communities (Free Movement of Persons) Regulations 2015 to fully bring them in line with the ruling [in Chenchooliah]”.

Since then, the amendment regulations have been enacted. The European Communities (Free Movement of Persons) (Amendment) Regulations 2021 (the “2021 Regulations”) effectively put all beneficiaries of the 2015 Regulations into the realm of removal orders. Prior to Chenchooliah, non-nationals who no longer had a right to reside in Ireland on the basis of the 2015 Regulations – such as by divorce from their EU spouse, or the EU family member’s departure from the State – they would be served with a proposal to deport under Section 3 of the Immigration Act 1999, and face potentially being barred from the State for a lifetime.

The Chenchooliah decision, and now the 2021 Regulations, mean that such persons must have their residence in the State assessed by way of the removal procedure under the 2015 Regulations. The 2021 Regulations amended Reg. 20 of the 2015 Regulations to include a ‘family member’ of a Union citizen as being of a class of persons subject to removal. Prior to the amendment (and the Chenchooliah decision), a removal order could only be made in respect of a Union citizen, not their non-national family members.

Reg. 20 of the 2015 Regulations, as amended by the 2021 Regulations, states that the Minister for Justice may make a removal order in respect of a Union citizen or a family member of a Union citizen, where the Minister is of the opinion that 1) they no longer have – or did not have – a right to reside in the State under the 2015 Regulations, or 2) because they represent a danger to public policy or public security and represents a genuine, present, and sufficiently serious threat to the fundamental interests of Society.

Prior to making a removal order in respect of an individual, the Minister must issue to the person concerned a proposal to make such an order and outline that they have 15 days to make representations against the making of a removal order. This broadly reflects the procedure under the previously applicable Section 3 procedure under the Immigration Act 1999. The crucial difference being that if a decision is made to not allow the person to remain in the State, a removal order does not prevent the individual from returning at a future date, whereas a deportation order under Section 3 automatically bans the person from re-entering the State for a lifetime unless the deportation order is revoked under Section 3(11) of the 1999 Act.

The Minister, in considering whether to issue a removal order, must consider a number of matters expressly outlined in the 2015 Regulations, and must notify the persons concerned if a decision is taken to not issue a removal order. In the context of non-national ‘former’ beneficiaries of the 2015 Regulations, this notification would presumably include a grant of permission to remain in the State, although this is not yet clear from a practical perspective.

While the 2021 Regulations provide some clarity as to the legal procedure to be applied to persons who no longer have a right to reside in the State under the 2015 Regulations, the Immigration Service Delivery has seemingly not yet introduced internal procedures to deal with cases which come within the remit of the new legislation. From the number of Chenchooliah cases we are advising clients on, the Minister has taken the position of issuing temporary Stamp 1 permissions to persons who – in the opinion of the Minister – come within the remit of the new Regulations until, it would now seem, they are served with a proposal to remove them from the State.

Since the 2021 Regulations have been enacted, there are a number of procedural and practical questions which remains unclear. How the Minister handles non-national family members – and whether temporary permissions will remain pending until the final resolution of their cases – will hopefully become clearer in the future when internal procedures are adopted, and we are advising our clients on every step involved.

If you previously had EU Treaty Rights and have been served with a proposal to deport or a deportation order under Section 3 of the 1999 Act, get in contact and we can assist you. Persons who are at risk of having their EU Treaty Rights revoked in cases where their spouse’s left the State, or, for instance, retention of residence is not available, may also benefit from the Court’s judgment in Chenchooliah and the 2021 Regulations, and we are happy to advise you in order to get the best possible outcome.

Regularisation Scheme for Undocumented Migrants – An update

The Minister for Justice first announced the proposed Regularisation Scheme for Undocumented Migrants in April 2021. This morning, Friday 3rd December 2021, the Minister announced the finalised version of the scheme with some welcome additions to the eligibility criteria.  The announcement includes the introduction of a parallel scheme which will allow International Protection applicants who have an outstanding decision and have been in the asylum process for a minimum of 2 years to apply for the Regularisation Scheme. The Minister also clarified that an applicant with a deportation order in existence can also apply. This is a very welcome development.

Announcing the scheme, Minister McEntee said,

“Given that those who will benefit from this scheme currently live in the shadows, it is difficult to say how many will be eligible, but we are opening this scheme for six months from January to allow people come forward and regularise their status.”

“It will bring some much-needed certainty and peace of mind to thousands of people who are already living here and making a valuable contribution to our society and the economy, many of whom may be very vulnerable due to their current immigration circumstances.”

“As a result, they may be reluctant to seek medical assistance when ill, assistance from An Garda Síochána when they are the victim of a crime, or a range of other supports designed to assist vulnerable people in their times of need.”

“I believe that in opening this scheme, we are demonstrating the same goodwill and generosity of spirit that we ask is shown to the countless Irish people who left this island to build their lives elsewhere.”

General Criteria.

The eligibility criteria as announced by the Minister today are listed below;

  • Applicants will have 4 years residence in the State without an immigration permission as of January 2022.
  • For those with children the requirement is 3 years residence in the State without an immigration permission as of January 2022.
  • The permission granted will allow unrestricted access to the labour market.
  • The permission will be reckonable residency for the purposes of applying for naturalisation/citizenship.
  • Applicants must be of good character, and applicants with convictions for minor offences can apply.
  • Persons with a deportation order in existence can apply if they meet the above criteria.
  • There is no requirement on an applicant to prove he/she will not be a burden on the state.

The Minister also announced the fees for applying under the Regularisation Scheme. A single individual application will require payment of a €550 application fee, whereas a family application will cost €700. Children up to 23 years of age, living with their parents, can be included in the Scheme and applications will be accepted for 6 months from January 2022.

Since the original announcement of the Scheme in April this year, applicants for International Protection were not originally included. When a draft of the criteria was released, they were also not included. However, thanks to the persisted advocacy efforts of many migrant rights groups, law firms, and other organisations, the Minister has decided to include International Protection applicants, i.e., those seeking asylum in the State through the International Protection Office.

International Protection Applicants

Persons who have an outstanding International Protection application and are in the asylum process for a minimum of 2 years can apply.  Unlike other applicants for the Scheme, there is no application fee for International Protection applicants.

Outlining the rationale for this approach, Minister McEntee said:

“I am conscious of the recommendation made by the Expert Advisory Group, led by Dr Catherine Day, regarding people who have been in the protection process for two years or more.”

“In regularising those who are long-term undocumented in the State, the Government is keen to also ensure that we address any legacy asylum cases so that the new system envisaged under the White Paper can come into operation in 2024.”

“I am committed to reducing processing times of both first instance decisions and appeals to 6 months respectively, which will ultimately benefit everyone in the protection process.”

Initial Observations

The Regularisation Scheme is clearly a very welcome and long-overdue milestone in attempting to bring Ireland’s immigration and international protection systems to a level which respects the rights of individual persons who may have simply fell through the many cracks in the system. It will bring an end to the anxiety which many of our clients live with every day while awaiting to regularisation their position in the State.

Notwithstanding that, there are still a number of matters which remain unclear until the official Scheme policy document is published. It is unclear whether the applicable period of undocumented residence (2 – 4 years) must be continuous, or can it be accumulative? Will persons who have had their permissions recently back-revoked be included? Will persons who had temporary permissions over the relevant residence period be excluded? These are just some of the questions which we hope will be clarified in the coming weeks, and we will advise our clients and any other persons seeking assistance of any developments.

We will provide updates on this Regularisation Scheme as more information regarding the application process becomes available. Persons who wish to regularise themselves in the State should be fully advised on their position and all available options to them. If you wish to regularise your status, please get in contact and we will tailor our advice to your specific circumstances in order to make you fully informed of all the possible options which may be open to you. You can contact us at 01 6174820 or email [email protected]

Working Entitlements for Stamp 1 Permission Holders

We have been consistently approached by many people seeking advice who have been rejected for jobs or interviews by recruiters and prospective employers due to the mistaken belief that a Stamp 1 permission does not allow for full-time employment in the absence of an employment permit. Strangely, there also appears to be a trend that employers will only employ persons who possess a Stamp 1G (or a Stamp 4, as is common) but not a Stamp 1, despite the terms of the permission expressly allowing for full-time employment. It seems that the confusion comes from a very general understanding of the documentary side of immigration practice, such as the (often mistaken) distinctions between GNIB/IRP cards, stamps, permission letters, and Employment Permits, and even Passports.

This note is aimed at assisting employers and recruiters in their understanding of the work entitlements of the more commonly encountered ‘stamps’ held by non-national workers, and set out the distinctions between the different documentary aspects of immigration practice and the associated working entitlements. It is hoped that this will clarify the meaning of permission stamps and what employers and recruiters really need to be aware of in their recruitment practices.

Non-nationals and permission to be in the State

Section 5 of the Immigration Act 2004 sets out that no non-national may be in the State without a permission granted by the Minister for Justice. Generally speaking, it is this ‘permission’ which gives a non-national a legal basis for being in the State. Permissions are then generally categorised by ‘stamps’, which reflect the various conditions attached to the non-national’s permission. These ‘stamps’ are in a numerical sequence (Stamp 0, Stamp 1, Stamp 2, Stamp 3 etc.), with each stamp reflecting the type of residence conditions – including work entitlements – which are attached to the underlying permission.

 

All non-nationals intending to reside in the State for more than 90 days must ‘register’ their permission and receive a ‘certificate of registration’ under Section 9 of the Immigration Act 2004, and this is commonly referred to as a GNIB Card (old form), or an IRP card (the new form). The GNIB/IRP card serves as evidence of a person’s permission and the conditions attached to it, but so too can a ‘permission letter’ given by any of the various Units or Divisions of the Immigration Service Delivery. These permission letters are evidence of the person’s permission and conditions, including work entitlements. The permission letter is sufficient to allow employment, particularly where there are delays in receiving IRP cards, and in light of the Minister’s change in practice to not include a stamp in the non-national’s passport.

Categorising Permissions – Administrative Practices and Employment Permits.

The bottom line from an immigration compliance perspective for employers, particularly HR professionals, is whether the person has a permission. If the person has a permission, then they are lawfully in the State regardless of whether they have an employment permit, stamp in the passport, or received their GNIB/IRP card yet etc. In order to determine whether the person can work, you must then look at the conditions attached to the permission which are reflected by the ‘Stamp’ number.

 

The stamp number will be available on a permission letter from the Immigration Service Delivery, which will also outline the conditions in more detail. A GNIB/IRP card will also outline the stamp number and a brief description of work entitlements. Depending on the non-nationals immigration history, they will not all have permission letters, but anyone intending to work in the State will have an IRP card at the very least.

For instance, a person may have applied to the Residence Division to change their status and received a Stamp 1 permission letter which expressly allows full-time employment without requiring an employment permit. This is sufficient to allow employment, and no employment permit is necessary if they are expressly exempt. The conditions for a Stamp 1 exempting an employment permit will state that full-time employment is permitted with a valid ‘permission or employment permit’. So long as the permission is valid, then full-time employment is permitted without an employment permit.

If a person receives an Employment Permit from the Department of Enterprise, Trade and Employment, this is evidenced by a physical employment permit given to the non-national concerned and their employer, but they will also receive a permission by the Department of Justice. The permission – based on having been given an Employment Permit – will simply be given Stamp 1 conditions, outlining that the permission is valid so long as the Employment Permit is valid too. This is simply an administrative practice by the Immigration Service Delivery, so a Stamp 1 is not exclusive to non-national’s needing an Employment Permit.

A similar distinction arises in respect of Stamp 1G holders. A person benefitting from the ISD Graduate Scheme will have a permission on Stamp 1G conditions, which allows for full-time employment but only for a maximum period of 24 months for Level 9 graduates, or 12 months for level 8 graduates. Beyond those periods, an employment permit must be obtained or an alternative permission which allows employment, including a Stamp 1 granted as a Change of Status from the Stamp 1G.

A Stamp 1G is also given to the spouses of Critical Skills Employment Permit holders. In this case, the Stamp 1G holder can work full-time without an employment permit and their permission is renewable yearly so long as the spouse’s Critical Skills Permit is valid or they obtain a ‘Stamp 4 Support Letter’ after two years. It is therefore critical that employers and recruiters etc. look beyond the number of the permission, and check what the conditions are.

Examples of stamps permitting full-time employment

As mentioned above, the key to determining employment entitlements is first check whether the non-national has a permission, then examine the conditions of that permission. The conditions will be demonstrated by a Stamp number as well as briefly outlined in either a permission letter or a GNIB/IRP card (some non-nationals may have both, and either is sufficient once the conditions are outlined):

Stamp 1without the requirement of an employment permit:

  • Permission to work full-time
  • Reckonable residency for naturalisation
  • Permission temporary but is renewable, often on a yearly basis, once conditions are followed
  • No requirement to obtain an employment permit – expressly exempt
  • Usually given to persons who successful applied for a ‘Change of Status’

Stamp 1 – employment permit required:

  • Must have received an Employment Permit
  • Permission to work full-time only for employer outlined on the permit
  • Reckonable residency for naturalisation
  • Permission temporary but is renewable, and duration depends on category of employment permit

Stamp 1G – Graduate Student

  • Permission to work for between 12 and 24 months
  • Not reckonable residency for naturalisation
  • Must obtain employment permit after Stamp 1G expires, or an alternative permission

Stamp 1G – Spouse/De facto partner of a critical skills employment holder

  • Permission to work full-time
  • Reckonable residency for naturalisation
  • Permission is temporary but is renewable
  • No requirement for an employment permit

Stamp 4 & 5 – Various categories (Spouse of Irish National, EU Treaty Rights, etc.).

  • Permission to work full-time
  • Reckonable residency for naturalisation
  • Permission temporary but is renewable, often on a yearly basis, once conditions are followed (EU Treaty Rights often granted for a 5-year period)
  • No requirement to obtain an employment permit – expressly exempt
  • Usually given to persons who successful applied for a ‘Change of Status’, either through marriage/family, or from previously holding an Employment Permit for either 2 or 5 years, depending on the type of permit held
  • Stamp 5 is given to persons with long-term residence in the State

As you can see from the above, Stamp 1 without the requirement of an employment permit is a more favourable permission than Stamp1G graduate student.  Each permission will have its own conditions and requirements set out in the permission letter received from the Minister for Justice. An employer’s blanket refusal of acceptance of a stamp 1 does not seem to take in account that some stamp 1 holders do not require an employment permit and that the permission maybe temporary but it is renewable.

We hope this short note is of assistance to employers and stress that it is general guidance only. A potential employer should look at each permission individually and we welcome employers/clients to contact us to seek further information or clarification on individual cases.

We can be contacted on 01 6174820 or at [email protected]

Afghan Admission Programme

On 28th September 2021 the Minister of Justice announced the introduction of the Special Afghan Admission Programme. The Minister announced the Afghan Admission Programme with the following draft elements;
– up to 500 additional places for Afghan family members to enter and reside in Ireland,
– family members will have the right to work without the need for an employment permit,
– Afghan nationals living in Ireland on or before 1st September 2021 will be eligible to apply,
– up to 4 close family members can be nominated,
– there will be an appeals process.

The program will prioritise the most vulnerable in terms of risk to their freedom and safety, such as: “older people; children; single female parents; single women and girls; people with disabilities; and people whose previous employment exposes them to greater risk, for example UN and EU employees and people who worked for civil society organisations.”

Although the Afghan Admission Programme is a welcome announcement from the Government the numbers of places available for family members would appear inadequate. We submit the programme should not limit the family nomination to 4 persons and should allow an overall number of places greater than 500.

The other avenues to family reunification, available to Afghan nationals, have onerous criteria which many cannot achieve. Afghan nationals who were granted subsidiary protection or refugee status within the last 12 months are entitled to apply for family reunification under the International Protection Act 2015 (“the Act”). The Act allows for family reunification with a spouse/civil partner, who was a spouse/civil partner at the time of the application for International Protection, and minor children. The Minister stated that these applications are currently being expedited. Furthermore, applications for family reunification by way of a ‘D Visa’ are also being expedited, according to the Ministerial announcement on 28th September 2021.

We have received many phone calls and emails from Afghan nationals living in Ireland who are concerned for family members. We will continue to assist and advise our Afghan clients who wish to be reunited with their family members. If you are concerned about family members in Afghanistan, please get in contact and we will advise you on the various options open to you.