• Aaron Flynn

Immigration News (Ireland) round-up 15 May 2020

1.


On 13 May 2020 INIS issued Notice 2 | New COVID-19 measures for Immigration and International Protection permissions to reside in the State that are due to expire between 20/5/2020 and 20/7/2020


This notice applies to Immigration and International Protection permissions to reside in the State that are due to expire between 20/5/2020 and 20/7/2020 and supplements the notice of 20 March 2020 which renewed permissions due to expire between 20/3/2020 and 20/5/2020.


In light of the uncertainties caused by the Coronavirus pandemic, COVID-19, theNotice applies to all persons with a current valid permission due to expire from 20/5/2020 to 20/7/2020, whether pursuant to domestic law or powers of the Minister, or Directive 2004/38/EC (Free Movement Directive).


All such permissions that are due to expire from 20/5/2020 to 20/7/2020 are automatically renewed by the Minister for a period of 2 months. The renewal of permission is on the same basis as the existing permission and the same conditions attach. In relation to persons with existing permission under Directive 2004/38/EC (Free Movement Directive), the automatic renewal is subject to the requirement that the person is complying with the requirements of the Directive.


Any permission which was renewed by the notice of 20 March 2020 and which therefore has a new expiry date between 20/05/2020 and 20/07/2020 is automatically renewed by this notice for a further 2 months.


The Dublin area Registration Office located in Burgh Quay remains closed as does

all Registration Offices for non-Dublin residents operated by An Garda Síochána.


2.


INIS has updated their FAQ document. This contains very useful information on how immigration cases will be progressed and advises against submitting original documents such as passports for Citizenship applications at present (see Q.84) and that only essential visas are being processed:


Emergency visa (e.g. Healthcare professionals, health researchers, and elderly care professionals); Immediate family members of Irish citizens (who are returning to their ordinary place of residence in Ireland); Persons legally resident in the State; Persons entitled to avail of the provision of the EU Free Movement Directive; Transport personnel engaged in haulage of goods and other transport staff to the extent necessary; Diplomats, staff of international organisations, military personnel and humanitarian aid workers in the exercise of their functions.


This is very important in the context of employment permit holders who are visa required. Where permits are approved an applicant will not be able to obtain a visa unless they fall into the categories above.


3.


The Court of Appeal has clarified how good character should be assessed in naturalisation applications. In Talla -v- The Minister for Justice & Equality [2020] IECA 135


In this case the applicant had some minor traffic convictions and had offered explanations for them including extensive correspondence showing some of summons had been struck out. It was not clear to the Court that these explanations were considered and they were not detailed in the summary presented to the Director General of INIS for sign-off on the naturalisation decision.


The Court was also satisfied that in these circumstances the Minister/Director General did not comply with the obligation to give reasons for a decision as required by the Court of Appeal decision in Mallak.


Haughton J found:


'in addressing the condition that an applicant be of ‘good character’ the Minister must consider and analyse all relevant material, and a failure to do so makes the lawfulness of the decision susceptible to judicial review. Put another way, the appellant had a legitimate expectation that the material favourable to him, including explanations for road traffic offences, would be considered and weighed by the Minister.This does not mean that the decision maker must consider the entire file, or that a system of presenting a summary and recommendation cannot be adopted –provided that all of the relevant material and information is fairly brought to the decision maker’s attention and is considered.'


and


'I have come to the conclusion that the trial judge erred in this General Observation, and that it cannot be concluded that the decision maker –the Director General on behalf of the Minister –considered all the relevant material on file. The letter of notification is not signed by the decision-maker.'


'Critically there is no mention of any of the explanations given by the appellant or his solicitors, or even the fact of the solicitor’s correspondence. '

Earlier in the decision Haughton J states:


'The court was informed that the last signatory at the bottom left of the application was that of the Director General of the Department for Justice and Equality, an officer duly authorised to consider the application and determine it on the Minister’s behalf. No issue was taken at first instance or on this appeal in relation to the power of the Minister to delegate authority to the Director General to take the decision on the Minister’s behalf.'

This appears to suggest there might be a Carltona type point that the Minister should be making the naturalisation decision. This point has been considered by the Courts on a number of occasions including in the context of deportation orders by the Supreme Court in W.T. & ors -v- Minister for Justice and Equality & ors [2015] IESC 73.


This case is an important development in the line of authorities on good character assessment in naturalisation cases and shows that proper detailed reasoning must be presented to the decision maker to comply with the law.


As set out above INIS has advised against submitting original documentation such as passports during the current COVID-19 restrictions. I am presently advising a number of clients on naturalisation and preparing applications for submission as soon as it is possible.


If would like to discuss any of the above please do get in touch.





 
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©2019 by Aaron Flynn Solicitors.