What is a ‘designated safe country’?

The notion of a ‘safe country of origin’, as described in the recast Asylum Procedures Directive is based on the presumption that certain countries can be designated, under specific circumstances, as generally safe for their nationals, or stateless persons, who were formerly habitual residents in that country. Ireland codified this concept of safe country of origin by section 72 of the International Protection Act 2015. Section 72(2) provides that the Minister may designate a country as safe only if he or she is satisfied that, on the basis of the legal situation, the application of the law within a democratic system, and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

Which countries are designated safe countries at the moment?

S.I No 121/2018- International Protection Act 2015 (Safe Countries of Origin) Order 2018 outlines a list of designated safe countries;

• Bosnia & Herzegovina,

• Macedonia,

• Georgia,

• Kosovo,

• Montenegro,

• Albania,

• Serbia,

• Republic of South Africa. 

 

On 31st January 2024, the Minister for Justice added Botswana and Algeria to this list of designated safe countries of origin. This designation is not retrospective meaning applicants from Botswana and Algeria who applied for protection before 31st January 2024 will not be subject to the accelerated procedure. 

What does it mean for international protection applicants from a designated safe country?

These applicants are processed by way of an accelerated procedure. This is an expedited process that aims to grant a person from a  designated safe country of origin a decision on their international protection case within 90 days of their application. These applicants have the added burden of showing there are serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances.

An applicant who is refused at first instance by the International Protection Office has a right of appeal to the International Protection Appeals Tribunal. The timeframe in which to submit an appeal is shortened to 10 working days from the date of the decision. An applicant’s appeal will be decided without an oral hearing unless the Tribunal believes that it is in the interests of justice to hold an oral hearing. The applicant is required to set out in the notice of appeal reasons why it is in the interest of justice to allow for an oral hearing. 

What do we see as the challenges of the accelerated procedure?

Given the expedited nature of the procedure applicants often do not have sufficient time to gain legal representation, medical reports or supporting documents from their home country. Given the designation that their country is safe it is of paramount importance that documentary evidence is obtained to rebut the presumption that they do not need protection. 

The safe country of origin list continues to be applied in practice, namely in response to a significant increase in the number of applicants to Ireland from those countries. There is no appeal against a designation that a person comes from a designated safe country of origin.

The Minister for Justice in making such a designation shall review the designation on a regular basis. S72(4) of the International Protection Act 2015 gives the Minister wide discretion as to the sources of information used to make the designation. As the designation and review process is not widely published applicants are not fully aware of the information used by the Minister in making a designation limiting their ability to rebut the presumption that their home country is safe.

 

On 24th May 2023 the Department of Justice provided updated guidelines for those making an application for citizenship. The documentary requirements have changed and we hope this short post can assist you in understanding these changes. 

 

Identity Documents

 

All applicants must establish their identity by providing documents to obtain a score of 150 points. A certified colour copy of the biometric page of an in-date home country passport will earn 150 points. All other identity documents have a lesser points score and will require applicants to submit multiple identity documents. A full list of identity documents and scores can be viewed here; Citizenship-Guidance-Document.pdf (irishimmigration.ie)

 

Refugees

 

Refugees will not be in a position to prove their identity by providing an in-date home country passport. Refugees can instead submit a certified copy of their Irish issued travel document, the declaration of refugee status along with a passport affidavit to meet the scorecard requirement. 

 

This sworn passport affidavit must include the following information: a) Full name – any other names previously used and the reason for change i.e. marriage. b) Date of birth or any alternative dates of birth previously used. c) Reason passport cannot be obtained. d) Circumstances of arrival in the State.

 

Residency Documents

 

All applicants must now provide two types of documents as proof of residency for each year of reckonable residency. A score of 150 points should be obtained for each year made up of Type A AND Type B documents. Type A documents include; Employment Detail Summary and Bank Statements. Type B documents include; utility bills, rent agreements and credit card statements. A full list of the documents can be viewed here: Citizenship-Guidance-Document.pdf (irishimmigration.ie)

 

In exceptional cases where the points requirement for residency cannot be met an affidavit can be submitted. The Citizenship unit will assess each case on a case-by-case basis.

 

Please contact us if you require assistance with the affidavits mentioned above. We can also assist you with the preparation and submission of the citizenship application. 

Email Siobhán at [email protected] or call 01 6174820.

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.

The Department of Justice have finally today (13^th January 2022) released the detailed criteria for the Regularisation Scheme (the ‘Scheme’) and confirmed that applications can be made from the 31^st 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 31^st 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 31^st January for a period of six months, ending on the 31^st 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.

 

 

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 31^st December 2021, effective from the 1^st 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 31^st 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 1^st 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.