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.

Regularisation Scheme for Undocumented Migrants