UPDATE: Regularisation Scheme Criteria
The Department of Justice have finally today (13th January 2022) released the detailed criteria for the Regularisation Scheme (the ‘Scheme’) and confirmed that applications can be made from the 31st of January 2022 for a period of six months. We have outlined below in summary the criteria for the schemes, the fees involved, and some of our own comments on the detailed terms of the Scheme. We have written previously on the Scheme and those blog posts can be found on the ‘News’ section of our website.
The purpose of the Scheme is to “provide residence permission to persons who are living in Ireland, and have been doing so for a longer period of time without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be ‘long-term undocumented’”.
The Scheme also outlines that asylum seekers will be considered in a separate regularisation Scheme which will be published on the website of the International Protection Office (ipo.gov.ie). As soon as the Scheme applicable to International Protection applicants is available, we will post about it here and inform all our eligible clients. Persons who are in the ‘Section 3 process’ are eligible for the Scheme, so too are persons already the subject of a Deportation Order.
Eligibility
The Scheme sets out who is eligible to apply and what fees are involved for each application and what happens when an application is approved or refused.
A person submitting an application on their own behalf is known as the ‘Principal Applicant’, and will include persons submitting applications on behalf of an ‘Eligible Family Member’, which will generally
be parents on behalf of their eligible children etc. The Principal Applicant must be 18 years or older.
Eligible Family Members include:
- The spouse, civil partner, or de facto partner of the principal applicant and living with the applicant for a period of at least two years immediately prior to the opening of the Scheme on the 31st January 2022.
- The direct descendants, adopted children, or stepchildren, of the principal applicant or of their spouse, civil partner, or de facto partner. Children up to 23 are included and living with the principal applicant or their spouse etc., and children 18 – 23 must be living with the principal applicant or their spouse etc. for a period of at least 2 years prior to the application (children who are age 18 and married but apply in their own right).
- Adult children above the age of 23 must make their own applications as principal applicants unless they require the close personal care of the principal applicant due to disability etc.
For the purposes of the Scheme, ‘children’ include stepchildren and adopted children and evidence of the relationship must be provided in accordance with the provisions of the Scheme.
In terms of the required period of undocumented residence, a Principal Applicant must have been residing in the State for a continuous period of four years without a valid immigration permission. In cases where the Principal Applicant includes a minor under the age of 18 in their application, the period is reduced to three years. All adult Eligible Family Members included in an application made by a Principal Applicant must have been continuously living in Ireland without a valid immigration permission for a period of two years.
Certain periods of residence covered by a valid immigration will be disregarded when calculating the relevant period. A short-term visitor permission will be disregarded and so too will any extensions of that permission where such extension was pursuant to the blanket extensions granted by the Minister for Justice in light of the COVID-19 pandemic.
The Scheme opens for applications on the 31st January for a period of six months, ending on the 31st July 2022. Applications received thereafter will not be processed, and applications must be made online and not by post. There is a fee of €700 for a ‘family unit application’ which includes the Principal Applicant and their spouse, civil partner, or de facto partner and any children up to 23 years of age. An individual application incurs a fee of €550. The fees must be paid at the time of making the application and are non-refundable.
If an application is approved, all persons included in the successful application will receive a Stamp 4 permission initially valid for a period of two years. This permission will be renewed for a further three-year period subject to compliance with the conditions attached to their permission, which will be outlined in detail in the decision letter. Successful applicants (excluding children under 16) must register their permission in accordance with Section 9 of the Immigration Act 2004. Once registered, the persons concerned will receive an Irish Residence Permit (‘IRP’) and still be subject to the standard €300 registration fee (excluding children under the age of 18).
If an application is rejected, the persons concerned can apply for an appeal of the refusal decision within 30 days of the date the decision was issued. An appeals officer may either confirm the decision, or grant the application and issue a permission on the above terms. If the appeal is refused, the Scheme states that the person concerned “will be referred for further consideration of their case by the Immigration Service in accordance with the relevant domestic law and the European Convention on Human Rights”. It is therefore not clear what will happen following an unsuccessful appeal, and it will greatly depend on the immigration history of the person concerned.
For instance, a person who previously had EU Treaty Rights may have their case forwarded to the relevant Unit or Division on accordance with the Chenchooliah decision and the European Communities (Free Movement of Persons) Regulations 2015, as amended. Other persons may receive a proposal to deport under Section 3 of the Immigration Act 1999 (for those who do not already have a deportation order in place).
What about revoked permissions?
The Scheme does not outline whether persons who have had their permissions revoked will be eligible to apply. However, it is our view that such persons can apply. While the Scheme refers to ‘undocumented’ persons, it appears that the key question is the presence or absence of a valid permission. For instance, a person who was granted EU Treaty Rights 5 years ago and received a Stamp 4 EU FAM permission would not be considered, in the general sense, to be ‘undocumented’.
However, if such a person had their permission revoked retrospectively, they may still may not be considered undocumented but their permission is considered to be invalid. Therefore, a permission with a revoked permission should be eligible under the Scheme where their documented presence in the State is effectively nullified by a decision of the Minister to retrospective revoke their permission to a previous point in time.
We have already advised a number of people on their eligibility for the Regularisation Scheme. If you wish to receive advise on your eligibility for the Scheme, please get in touch and we can arrange a consultation. Even if you are not eligible for the Scheme, we can advise you of any alternative options which may be reasonably open to you in your personal circumstances.
