Non-EEA Family Reunification

The Department of Justice has recently (Dec '13) published a lengthy policy document on Non-EEA Family Reunification. David O'Neill BL provides a helpful summary of the document's main points: 1. General 1.1 The policy applies at once to any Irish citizen or qualifying resident who wants to bring a partner in from a non-EEA country 1.2 It may apply to an Irish citizen or qualifying resident who wishes to get status for a non-EEA partner already here 1.3 In principle, it should even apply to a non-EEA national with student, worker, or Stamp 4 status who is seeking an upgrade on grounds of partnership with an Irish citizen or qualifying resident, but this service could not then be offered over the counter at GNIB 1.4 The policy does not govern submissions in response to a proposal to deport 1.5 The policy may apply to applications to revoke a Deportation Order, but immigration history will be taken into account anyway 1.6 Departure from the policy should be “rare” and “exceptional” 2. Spouses/Partnerships 2.1 Where the sponsor is an Irish citizen, (s)he must show that (s)he has: • in the 3 years before the application earned not less than €40,000 gross over and above any State benefits received AND • not have been totally or predominantly dependent on State benefits for a continuous period of 2 years 2.2 The migrant’s potential earnings do not count 2.3 There is no exemption for sponsors on carer’s or disability benefit 2.4 Eg an Irish homemaker in the US wholly dependent on his or her US spouse’s income could not reunify under this family policy 2.5 Savings of the sponsor or foreign national may be counted in an unspecified manner 2.6 Green Card holders who are admitted on the basis they will earn a minimum amount can bring their families immediately subject to being able to show that they continue to earn the minimum at renewal 2.7 Ordinary work permit holders must maintain at least the minimum qualifying earnings of €30,000 over two years; maybe more if non-Irish children are to come as well 2.8 Non-visa-required employment permit holders can no longer be joined or accompanied by their spouses or children for their first 12 months in Ireland unless the employment permit is a Green Card 2.9 Certain Stamp 4 holders, such as those given humanitarian leave, may only sponsor after holding the permission for 2 years 2.10 Marriage/partnership of convenience is interpreted so widely that it may become a primary purpose rule ie you won’t be admitted if you can’t show how you would stay together if you were refused 2.11 Immigration by the parents of an Irish child will generally be facilitated unless the family is mainly foreign, especially if it would be a burden on the State 2.12 Persons making fraudulent applications may face residence bans eg you don’t declare your UK visa refusal, you may not apply to rejoin your Irish family for 5/10 years – the length isn’t specified 3. Termination 3.1 In principle, if the sponsoring spouse dies, the former family permit holder may normally remain in Ireland if (s)he has lived (presumably legally) in Ireland for 2 years or more before the death 3.2 If the couple divorce or are legally separated, permission to remain based on the sundered union will only be granted if the union lasted 3 years or more and the couple resided for 2 of those years in Ireland – other criteria may also have to be met 3.3 Once a union that formed the basis of a family permission breaks down each party (presuming that both at that stage qualify as sponsors) must wait 7 years from the date of grant of the previous family permission before either may sponsor a different partner 4. Parents 4.1 The following conditions apply to the immigration of elderly dependent relatives: • There must be “exceptional circumstances” to justify a positive decision • The sponsor must show that there is no practical alternative to the parent’s immigration • The sponsor must have a net income for each of the 3 years prior to the application of €60,000 where the migration of 1 parent is sought, and €75,000 with regard to 2 parents 4.2 “Dependence” must be social and financial and continuous, must predate the application, and must be essential for independent living at a subsistence level. 4.3 Any permission granted will be subject to the following conditions: • Private health insurance equivalent to VHI Plan D • The sponsor’s undertaking to be completely responsible for the parent’s financial needs and to reimburse the State for any State funds availed of by that parent – a bond may be required • Detailed provision for the parent’s accommodation • Annual renewal subject to the conditions still being met • No qualification for long-term residence or naturalization 4.4 Applications under this policy must always be made from outside the State, even though other elements of the family policy say this is impracticable for non-visa-required nationals 4.5 It is not, therefore, clear whether this policy is yet in force

EU Treaty Rights- Residency

European Union citizens and EEA nationals have the right to remain in Ireland and have family members live in Ireland with them if certain criteria are met. 'Family' means your spouse, children under 21, civil partner, other children who are dependent on you and their spouses or civil partners, your parents and your spouse or civil partner's parents, provided they are dependent on you. The EU citizen may remain in the State for 3 months without restriction. If you plan on staying in Ireland for over 3 months you must be either: -Employed or self employed in the State or; -Be enrolled as a student or trainee or; -Have sufficient resources and health insurance to ensure you will not be a burden on the State or; - Be a family member of an EU Citizen in one of the above categories. This area of law is derived from EU Directive 2004/38/EC which was brought into Irish law by the European communities (Free Movement of Persons) Regulations 2006 and 2008. The host member state must facilitate the entry and residence of other family members who do not have an absolute right to move but who are dependent on you or whose health is such that they require care by you. Member states must also facilitate the entry and residence of a partner with whom you have a durable relationship.

Ireland – Third Lowest European Rate for Granting Asylum

Jul 06, 2013
Pádraig Murray
Asylum, High Court, Human Rights, Immigration, INIS, News

From the Irish Refugee Council: The latest European statistics on granting asylum show that Ireland has the third lowest The Irish Refugee Council welcomes the improvement in acceptance rates at first instance, but expresses concern at the continuing below average rate of acceptance in Ireland. 10% of cases were granted status at first instance and just 6.8% were successful at appeal. The total percentage of positive decisions was 8.3% compared with 34% in Portugal, 15% in Spain and 39% in the UK. Only Greece at 4.8%, Cyprus (5%) and Luxembourg (1.7%) had lower acceptance rates. Sue Conlan, CEO of the Irish Refugee Council, says: “The continuing low numbers of grants of refugee status or subsidiary protection in Ireland, which leads to the huge delays, show that there are serious deficiencies in the decision making processes. In particular, the statistics of 6.8% positive decisions at appeals bear out the severe criticisms of the refugee appeal body, the Refugee Appeal Tribunal, by the superior courts in recent months. “These deficiencies, which are at the root cause of the delays in the system, will not be remedied without significant reforms, including providing adequate legal advice for applicants and overhauling the appeal body. Neither of which are contained in the proposed the Immigration, Residence and Protection Bill.”

Note on the Common Travel Area

The High Court has recently stated that only UK nationals and Irish citizens may avail of the reduced border restrictions of the Common Travel Are. In practice this means that non-nationals travelling between Ireland and the UK, including the North of Ireland, may face difficulties returning to the South of Ireland

Often a person's right to remain in Ireland is conditional upon that person remaining within the State. This may become an issue where a person unwittingly crosses the border to the North of Ireland. On return to the South the person may be required to re-apply for permission to land or be in the State.

The case involved a Bolivian couple who had travelled to the North of Ireland onwards to Scotland and then to London. They had been given permission to remain in Ireland for one month from their first arrival in Dublin

The Court noted that there appears to be a common misconception that foreign nationals could also benefit from the Common Travel Area, which, according to the court, not the case. The couple were stopped by the UK authorities in Scotland and sought to deport them, they asked the Irish authorities whether they were entitled to re-enter Ireland which the Irish authorities said they were not.

The Court noted that the couple had probably made an innocent mistake.

Urgent Update: Student Probationary Extension Scheme

The Irish Naturalisation and Immigration Service has announced an extension for certain non-EEA nationals registered as students who have exceeded the 7 year time frame.

A 2 year probationary extension is being made available to students who have been resident within the state and registered as a student before 1st January 2005.

At the end of the 2 year probationary period the student may be eligible to apply for a more permanent status.

During the 2 year probationary period the following restrictions will apply:

The eligible student will not be required to be registered or enrolled in an academic course of study.
The eligible student will be permitted to work for a maximum period of 40 hours per week without being required to hold a work permit.
The eligible student will be required to maintain private medical insurance.
The eligible student will be required to reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.)
The eligible student will not be permitted to apply for reunification with family members who are resident outside the State.
The eligible student must be of good character and must demonstrate that they are law abiding.

Conclusion of the Probationary Period

At the conclusion of the two year probationary period the eligible students can apply for a Stamp 4 permission to reside in the State. Students will be required to -

Demonstrate that they have resided in Ireland during the probationary period, and
Submit a valid P60 certificate which has been issued during the two year probationary period, and
Reside in the State without drawing on publicly funded social assistance programmes (e.g. supplementary welfare allowances, medical card, jobseeker supports etc.), and
Be of good character and not be convicted or charged with any criminal offences, and
Pay an appropriate immigration levy.
We feel that the probationary period will be of particular interest to Chinese nationals who may wish to extend their time within the state or may wish to reside on a more permanent basis, although the scheme will be open to all non-EEA nationals.

If you require advice regarding the INIS 2 year probation scheme or if you have a general immigration law query, contact us to arrange a consultation.