Children of Same Sex Couples and their Right to Irish Citizenship

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The state has been granted Supreme Court appeal against judgment in the joined case of X and Z (suing by his mother and next friend Y) v. The Minister for Foreign Affairs & Ors [2025] IEHC 214  with the Human Rights and Equality Commission to appear as amicus curiae. The High Court judgment delivered on the 11th of April 2025 involved a case taken against the Minister for Foreign Affairs regarding citizenship by descent for children of same-sex parents born from donor-assisted human reproduction (DAHR), where the child is born abroad and only the partner of the gestational mother holds Irish citizenship. 

 

Both families in  X and Z have used DAHR to have their children and are same-sex female couples. One partner in each family is an Irish citizen but in neither family was the Irish citizen also the gestational mother. To be regarded as a parent under Irish law the individual must either be the gestational mother or the genetic father. There are exceptions to this, for example in the case of adoption, but any exception is already laid out in legislation. This is interpreted strictly, meaning that in the present case neither Irish citizen could be seen as a parent under Irish law even where one of them was the biological mother. 

 

In family X, a family living in Australia, the sperm donor was the brother of Mrs. X (the Irish citizen) and the egg was provided for by Mrs. X’s Australian partner who also was the gestational mother. Therefore Mrs X’s partner was both the gestational and biological mother

 

In family Y, a family living in Spain, Ms. Y is the genetic mother of the child. Her egg was fertilised and then implanted in her wife who was the gestational mother. Spain had recognised both women as legal parents of their children. The Y family had two children born with DAHR. One child was able to obtain Irish citizenship because the Irish parent was the gestational mother and her partner’s egg was fertilised and implanted into the Irish parent. This created a situation where two children of the same family were treated differently by the state depending on which mother was genetic and which was gestational. In order for legislation to be adequate when concerned with matters related to children, it must ensure that the best interests of the child are upheld – this case highlights an issue in current legislation.

 

The question raised in this case was whether the Minister for Foreign Affairs erred in rejecting applications for citizenship for the children born out of DAHR on the basis that the Irish partner in family X and Y did not meet the statutory definition of ‘parent’ under s. 7(1) of the Irish Nationality and Citizenship Act, 1956 (1956 Act). The second issue raised was whether s 7(1), in the exclusion of same-sex couples where they are not biological and/or gestational parents, is unconstitutional and/or incompatible with the European Convention on Human Rights (ECHR). 

 

The court was, however, satisfied that the Minister erred when he failed to recognise the genetic mother of a child as a parent under s 7(1) of the 1956 Act. The court also held that the legislation does not provide for children of an Irish citizen living abroad, with a parent who is regarded as such in accordance with private international law, to acquire citizenship resulting in the unequal treatment of the child, parent and family unit. Ms Justice Phelan noted it is for the Oireachtas to implement legislation that would cure the identified breach of the constitution in the case.

 

In seeking to appeal to the Supreme Court the state contends that the High Court failed to properly determine the nature and extent of the equality obligations and that there is a need for certainty around who qualifies as a parent or mother. All parties recognise the importance for clarification in the law and that it is in the public interest to gain certainty in the area of citizenship by descent. 

 

Are you a person of independent means thinking of retiring to Ireland?

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We have witnessed a marked increase from our overseas clients, particularly from the US, seeking information on how they can retire to Ireland. If you are a person of independent means who wishes to retire to Ireland you may find this post beneficial. The following is a brief outline of the steps involved in making the application and requirements that must be met to achieve a positive result.

Step 1:
Whether you are visa required or non visa required you must apply for permission to retire to Ireland directly to Unit C – Domestic Residence and Permissions Division, Immigration Service Delivery, Department of Justice, 13-14 Burgh Quay, Dublin 2. The application must enclose supporting documentation and a completed application form;
https://www.irishimmigration.ie/wp-content/uploads/2023/10/TPER-Application-Form.pdf

To be eligible to apply an applicant must have an individual income of €50,000 per year and access to a lump sum which should be equal to the price of a residential dwelling in the State. The average price of a home in Ireland is currently in the region of €360,000.
Evidence of the applicant’s finances should be presented in spreadsheet form and converted into euros. It should clearly show monthly income and spending. This financial information must be certified by an Irish accountancy firm. Evidence of Irish Associations and family members based in Ireland will also be considered as part of the application. A health certificate and police clearance certificate form part of the documentary requirements.

Step 2:
For successful applicants a Conditional Letter of Offer from the Domestic Residence and Permissions Division to retire to Ireland will be issued within four months. It will enclose an agreement to be signed by the applicant. The conditions of this residence permission include a condition that employment is not entered into and a profession is not engaged in by the applicant.
Visa required individuals must apply for a D-Reside Visa before entering the state to reside.

Step 3:
After arrival in the state, the applicant must send the signed Agreement Form (which was sent with the conditional letter of offer) and passport to Immigration Service Delivery. The applicant is required to make an appointment to Burgh Quay Registration Office to register the permission and receive the Irish residence permit Stamp 0.
It is worth noting that this permission requires annual renewal and financial documentation including the certification by an Irish accountant must be provided annually.

If you considering retiring to Ireland and require more information or assistance please contact us at [email protected]

 

Naturalisation by Irish Association

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The long awaited guidelines for naturalisation by Irish association were published on 2nd of April 2025 The Irish Nationality and Citizenship 1956 (as amended) (‘the Act’) provides that the Minister for Justice may with absolute discretion grant a certificate of naturalisation where the ordinary conditions are not met. Under Section 16(a) and 16(b) of the Act, the Minister may do so for applicants who have Irish associations or descent or for applicants who are parents acting on behalf of a child with Irish associations or descent. 

The Act is silent as to what constitutes an Irish association and the new guidelines are most welcome in clarifying the requirements.

The guidelines define descent as a direct lineal descendant of a person who is, or was at the time of death, an Irish citizen, for example a child or grandchild. 

Association is defined as one of the following:

  1. Blood – Blood relation to someone who is (or is entitled to be) an Irish citizen or someone who at the time of their death was or was entitled to be an Irish citizen. This may be ascending (parents or grandparents of an Irish child) or lateral (siblings of an Irish citizen).
  2. Affinity – A relation through marriage to a spouse or through an immediate blood relative (i.e., parent or sibling) of a spouse who is (or is entitled to be) an Irish citizen or who was at the time of death an Irish citizen or entitled to be one.
  3. Adoption – Association may be proven through adoption.
  4. Civil Partnership – Civil partnership as recognised under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Once the Minister has determined that there is an Irish association or descent the Minister will consider waiving the usual requirements for naturalisation. These statutory requirements may include a specific period of reckonable residence in Ireland. 

The Minister will assess the strength of the application, considering specifically the applicant’s connection to Ireland through the following categories:

  • Experiential connection to the State
  • Family connection to the State
  • Cultural connection to the State
  • Establishment in the State

Using a scorecard system where an applicant has proven a strong connection (50% or more of the total score) in two or more of the categories, it may be considered appropriate to waive any or all of the naturalisation conditions. Supporting documentation will be used to evaluate the application for each of these categories. Below is a table of indicative scoring criteria.

Experiential Connection Scored out of 50
Length of residence in Ireland 5 points per year (25 points max)
Resident in the State for tax purposes 10 points
Evidence of frequent trips to Ireland in the past ten years (if not currently resident) 3 points per trip (15 points max)
Family Connection Scored out of 60
Family members (as defined in section 15C the Act*) are, or were at their time of death, Irish citizens ordinarily resident in Ireland. 60 points
Cultural Connection Scored out of 60
Evidence of having contributed in a significant way to the Irish nation or Irish society  30 points
Being in possession of a professional/third-level qualification issued in Ireland (NFQ levels 6-10) 10 points
Being in possession of a Junior Certificate (or equivalent) from Ireland 10 points
Being in possession of a Leaving Certificate (or equivalent) from Ireland 10 points
Establishment in the State Scored out of 60
Holding a current Irish health, car or home insurance policy 10 points
Number of PRSI Contributions 2 points for every 10 PRSI Contributions (max 20)
Being a member of a public/private pension fund based in Ireland 20 points
Being in possession of a valid full Irish driving licence 5 points
Holder of Irish bank account with evidence of recent transactions in Ireland 5 points

 

The Minister has absolute discretion and satisfying these guidelines does not guarantee the granting of a certificate of naturalisation. There may also be circumstances not outlined in the guidance that must be considered by the Minister.  Decisions are made on a case-by-case basis.

 If you wish to make an application for naturalisation by association, feel free to contact us at [email protected] to arrange a consultation.

 

Designated Safe Countries & The Accelerated Procedure

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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.

Activist Lawyer Podcast – an interview with Siobhán Conlon

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Siobhán discusses citizenship, family reunification, and asylum.

 

https://www.activistlawyer.com/podcast/episode/2c117a5c/episode-63-siobhan-conlon

 

Citizenship Application – UPDATE

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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.

Visa-free travel for refugees from 20 European countries suspended

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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

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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 when the EU citizen was still in the State.

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. 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

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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

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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.