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IMPACT – MEDIUM
What is the change? Mr Justice Barrett has ruled that people applying for citizenship must have continuous residence (i.e. spend every day) in Ireland for the 12 months before the date on which they lodge their application.
What does the change mean? The ruling means that anyone who leaves Ireland, even for a day, during the 12-month period before submitting an application may not be eligible for citizenship.
Background: Foreign nationals who wish to obtain citizenship by naturalisation must legally reside in Ireland for five of the previous nine years before submitting an application, or three of the last five years for those married to an Irish citizen. Additionally, applicants are required to have “continuous residence” in Ireland for the full 12-month period before the date on which they submit an application. The previous policy allowed absences from Ireland of up to six weeks per year and even more in cases of unforeseen and extenuating circumstances.
In a ruling last week, however, Mr Justice Barrett said that spending any time outside of Ireland in the 12-month period rendered an applicant ineligible for citizenship. Mr Justice Barrett interpreted the law strictly, relying on the dictionary definition of “continuous” as “unbroken, uninterrupted, connected throughout in space or time” in reaching his decision. Mr Justice Barrett allowed that his conclusion “may seem unfair” but stated that “the cure for any (if any) such unfairness, as is resulting, is not to be found in the law-courts; it lies in the gift of the legislature.”
Analysis & Comments: The judgement affects all foreign nationals in Ireland applying for citizenship by naturalisation. As a result, one of the three following outcomes is likely to occur: (1) a request will be made to amend legislation, allowing for reasonable absences; (2) a decision will be made to appeal the result; or (3) the ruling will remain in place.
The Minister of Justice and Equality has issued a statement here confirming the Department are reviewing the decision in consultation with the Attorney General’s Office. Additionally, the Irish Naturalisation and Immigration Service (INIS) has posted a notice stating that it will seek resolution of the issue as an urgent priority, and in the meantime will continue to process citizenship applications and is not advising applicants to cancel any travel plans. Those planning to apply for citizenship should continue to collect and submit all documentation to support their application, and once this issue is resolved, INIS will request any additional information, if required. The ruling is not expected to affect those who have already acquired citizenship through naturalisation.
Deloitte are seeking clarification on reasonable absences in the 12 months prior to applying for citizenship by naturalisation and are also seeking clarity on the status of current applications. Additionally, Deloitte are engaging with the American Chamber of Commerce and the IDA as to next steps and timeline, and will issue an update when the Irish authorities release further information.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
What is the change? Ireland has begun issuing five-year, multiple-entry tourist visas to qualifying Chinese nationals.
What does the change mean? Chinese nationals traveling to Ireland for tourism may now apply for the five-year visas if they have (1) a reliable travel history (proven by a previously held tourist visa issued by Ireland, Australia, Canada, New Zealand, the United Kingdom, the United States or a Schengen Area country) and (2) complied with the terms of that previous visa.
Background: Irish officials timed the issuance of the new visas to coincide with the 40th anniversary of diplomatic relations between Ireland and China. The Minister for Justice and Equality, Charlie Flanagan, said in a statement that he hoped the new visas would lead to continued growth in Ireland’s “important bilateral relationship” with China. “With a population of over 1.3 billion people and a strong economy, China offers fantastic potential tourism links for Ireland,” he said.
Analysis & Comments: The introduction of five-year, multiple-entry tourist visas to qualifying Chinese nationals is consistent with broader efforts in Ireland to attract Chinese tourists and business travelers. While business activities are not permitted on a tourist visa, Chinese business travelers can apply for business visas to carry out business activities and/or apply for 14-day work permission.
Source: Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
IMPACT – HIGH
What is the change? Ireland and the U.K. have confirmed that the U.K.-Ireland Common Travel Area will remain, regardless of the outcome of the U.K. Parliament’s Brexit negotiations.
What does the change mean? The CTA will continue to allow Irish and British nationals to travel, live and work in the U.K. and Ireland in the case of a no-deal Brexit.
Background: The CTA provides reciprocal rights to Irish citizens and U.K. citizens to travel, study, work and reside in each other’s country on the basis of their passport and without further immigration processing, such as work or residence permit procedures. The memorandum of understanding signed last week noted that the “CTA and associated reciprocal rights and privileges existed long before either Ireland or the UK were members of the European Union” and that “the privileges which Irish and British citizens enjoy (under the CTA) are separate from, and therefore not dependent on, EU citizenship or EU membership.”
Analysis & Comments: The memorandum affirms that Irish and U.K. nationals will continue to enjoy the privileges they have under the CTA, regardless of the Brexit outcome, and ensures that companies will be able to continue employing the affected nationals as before Brexit.
What is the change? Beginning May 13, adult citizens of visa-required countries living in Ireland will not need a re-entry visa in order to return to Ireland after overseas travel. They will be able to use their valid IRP or GNIB card in lieu of a re-entry visa.
What does the change mean? Visa-required individuals traveling outside of Ireland can return to the country on the basis of their valid passport and IRP or GNIB card, provided the return date to Ireland falls on or after May 13. Any travel into Ireland before this date will require that the individual has a valid re-entry visa.
Background: Individuals from visa-required countries who are moving to Ireland for longer than 90 days are granted only a single-entry visa into Ireland. Under the current policy, after registering with the immigration authorities and obtaining an Irish Residence Permit (IRP card, previously called a GNIB card), they must then apply for a “re-entry visa,” which is a multiple-entry visa that matches the validity period of the IRP card. The re-entry visa application must normally be filed by registered post and can often take many weeks to be approved and the passport to be returned. As a result, citizens of visa-required countries are frequently unable to travel abroad for extended periods while they await the re-entry visa.
From May 13 onward, re-entry visas will not be needed. The IRP card (or legacy GNIB card), along with a valid passport, will serve as an entry document back into Ireland. Depending on the individual’s immigration status in Ireland, additional documents may also need to be carried (e.g., an employment permit) when traveling into Ireland. Individuals should contact their immigration provider with any questions about other required or recommended documents for their situation.
Analysis & Comments: The change is welcome news. Foreign nationals who have recently moved to Ireland can now travel abroad and re-enter the country once they have an IRP card. Note that for residents of Dublin, IRP card appointments must be booked online. Available slots may be filled up many weeks or months in advance. IRP cards are then sent by post to the applicant’s Irish address within approximately two weeks after the appointment. Careful planning is needed to ensure that a timely appointment is booked well in advance of any planned travel.
The process of applying for a single-entry, long-stay visa for individuals currently living outside Ireland remains the same. Individuals with re-entry visa applications that are currently pending should allow the process to be completed as normal. Those without a valid re-entry visa with upcoming travel outside of Ireland before May 13 should speak with their immigration provider in advance, as a re-entry may still be required.
Ireland’s Department of Business Enterprise and Innovation has announced changes to the employment permit system, including amendments to the Critical Skills List and Ineligible List of Occupations and to revenue documentation requirements. The changes will take effect April 22.
Key Points:
The DBEI also made technical changes to the requirements for employment permits for chefs and announced that secondary schools will be able to sponsor career guidance teachers through the employment permits system in the same way in which they sponsor other secondary school teachers.
More information is available here. The regulations can be located here.
Analysis & Comments: The changes will affect all employment permit applications filed on or after April 22. Employers are encouraged to review the changes before they take effect.
What is the immigration news? The Irish Naturalisation and Immigration Service has launched a new immigration preclearance scheme for de facto partners of Critical Skills Employment Permit holders.
A de facto partner is an unmarried partner who has lived with a CSEP holder for at least the past two years in a relationship akin to marriage. Under the scheme, non-EEA de facto partners of CSEP holders will be required to obtain a preclearance letter before traveling to Ireland. While the change will add to the time it takes to travel to the country, but de facto partners of CSEP holders will, after arriving in Ireland and attending an in-person registration appointment, be granted Stamp 1G permission if requested, rather than Stamp 3 permission. This will allow them to work in Ireland without obtaining a separate employment permit.
Additional information: Last month, INIS announced that spouses and de facto partners of CSEP holders would be able to obtain Stamp 1G immigration permission if requested. INIS has now provided guidance on how the process will work for de facto partners of CSEP holders who are coming to Ireland with their partner.
The new scheme applies to all non-EEA de facto partners of CSEP holders, whether they are from a visa-waived country or not. Visa-waived nationals will be required to present their preclearance letter of approval to an immigration officer upon arrival in Ireland. Most visa-required nationals will be required to obtain preclearance and then include their letter of approval in their visa application. Applicants from countries that require biometrics as part of the visa application process (currently China, India, Nigeria and Pakistan) should first file the preclearance application and then immediately proceed with the visa application, before the preclearance approval letter is issued.
Applicants and their sponsors will be required to provide a copy of their current and previous passports, police clearance certificates for every country in which they have resided for the past five years, bank statements, a detailed relationship history and evidence of contact, co-habitation, financial inter-dependence and health insurance. Applicants will additionally be required to provide evidence of fee payment, residence outside of Ireland and, if applicable, evidence of legal residence outside their country of citizenship. Sponsors will be required to provide a copy of their CSEP and employment contract as well as evidence of educational qualifications and work experience.
Additional information on the application requirements is available on this INIS site.
BAL Analysis: While the new scheme adds to the time it will take for de facto partners of CSEP holders to travel to Ireland, it will ultimately benefit both de facto partners and employers. Applicants who obtain preclearance and an entry visa (if required) will be able to work freely in Ireland once they register with the authorities after arriving in Ireland, and businesses will be able to employ them without needing to sponsor them for an employment permit.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
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What is the change? Irish immigration authorities have announced that Critical Skills Employment Permit (CSEP) holders’ spouses and partners who hold Stamp 3 immigration permission in Ireland are now eligible to apply for Stamp 1 permission, which will allow them to work in Ireland without the need for an employment permit.
What does the change mean? This is a significant policy change that will provide spouses and partners of CSEP holders with much greater flexibility to work in Ireland. Previously, a CSEP holder’s dependent family members had to have a job offer and approved employment permit before they could apply for a Stamp 1 and start working.
Background: The stamp on the Irish Residence Permit (formerly known as a GNIB card) confirms the holder’s immigration status. Until now, spouses and partners of CSEP holders with Stamp 3 permission were not authorized to work in Ireland and needed to first have a job offer and apply for a Dependant/Partner/Spouse employment permit. This permit was specific to a certain role with a certain employer and did not offer the flexibility of unrestricted work authorization.
Analysis & Comments: Deloitte welcomes this change and thanks the Department of Business, Enterprise & Innovation and the Irish Naturalisation and Immigration Service for engaging with them and others on this issue. The government’s announcement is good news for spouses and partners of CSEP holders and brings Ireland in line with many other countries in providing work authorization to dependents of high-skilled foreign workers. These dependent spouses and partners may now work freely in the country once they have switched to Stamp 1 permission, a process which involves an in-person appointment similar to what they went through to obtain the Stamp 3. For individuals living in County Dublin, the process involves booking an online appointment and attending the Burgh Quay Registration Office. Those outside of County Dublin should contact their local GNIB office directly to arrange an appointment. Note that the family member holding the CSEP must accompany the Stamp 3 holder to the appointment, and must provide a copy of the CSEP.
What is the change? The Department of Business, Enterprise and Innovation has asked Critical Skills Employment Permit holders seeking Stamp 4 permission to apply for their support letter after completing 20 months on their permit. Previously, CSEP holders were required to wait until they had completed 21 months on their permit before applying.
What does the change mean? CSEP holders who want to continue working and living in Ireland past the expiration of their employment permit may apply for the Stamp 4 support letter one month earlier than previously. This change will provide an extra month for the support letter to be processed, to ensure its issuance in time for the in-person Stamp 4 application.
Background: Ireland allows non-EU/EEA nationals holding a CSEP to continue living and working in Ireland upon the expiration of their permit by applying for Stamp 4 permission, which is valid for two years and is renewable. One of the required documents needed to apply for Stamp 4 permission is a support letter issued by DBEI. Up until now, CSEP holders have been advised to apply for the Stamp 4 support letter after completing 21 months on their permit, which is typically three months before the expiration of their CSEP. This time frame has been moved up in an effort to address ongoing processing delays. DBEI has called the new time line an “interim measure” and said they hope to have processing delays resolved by the end of January.
Analysis & Comments: While DBEI has said that no one awaiting a decision on a Stamp 4 support letter will be asked to stop work or to leave the country if their application is pending, applicants are nonetheless encouraged to apply by the new, and earlier, 20-month mark.
What is the change? Ireland will increase its minimum wage from €9.55 per hour to €9.80 per hour Jan. 1.
What does the change mean? The change could affect the base salaries paid to employees in several work permission categories, including those working on Atypical Working Scheme, dependents or interns on employment permits and, in some cases, those working on intra-company transfer permits or contract for services permits.
Background: All employment in Ireland must comply with the National Minimum Wage Act, with the exception of certain employment of people under the age of 18 or people employed pursuant to Employment Regulation Orders and registered employment agreements. Employers should be sure to raise salaries to meet the new minimum wage. ICTs and Contract for Services permits allow employers to count certain allowances, such as housing or health insurance, toward meeting the minimum salary threshold required for the visa category. Employers should adjust the base remuneration to meet the higher national minimum wage before adding the allowances.
Analysis & Comments: Companies should identify employees and assignees whose salaries require adjustment and make the appropriate increases to meet the new statutory minimum wage.
The High Court in Ireland has quashed a decision by the Minister of Business, Enterprise and Innovation to deny the renewal of an employment permit outright on the grounds that the foreign employee was technically not in immigration status when he applied and that his salary did not appear to meet the minimum threshold, without first considering the employer’s evidence contradicting the shortcomings.
Key points:
Background: The applicant, a Malaysian national, held an employment permit for several years as a chef and sought to renew it. The restaurant that employed him was eight days late in applying, so he technically had a lapse in immigration permission. Additionally, the salary slips did not match the terms of his previous employment permit. For those two reasons, the minister said that an employment permit “cannot issue” and denied the renewal. The employer argued that the application had been timely filed and that the employee was paid correctly but that his pay slips were delayed in being updated because the owner of the restaurant was out of the country for a family funeral.
The High Court ruled that the minister is required by the Employment Permits Act to consider the reasons given by the employer and provide a rationale for her decision if the reasons were insufficient. Previous Supreme Court judgments “make clear that public bodies exercising discretionary powers which affect the rights of individuals are required to give reasons for exercising the power in a particular way so that the party affected may understand the rationale for the decision and if necessary challenge it,” the High Court said.
The full decision in Ling and Yip Limited v. The Minister for Business Enterprise and Innovation may be viewed here.
Analysis & Comments: The judgment is important in confirming that the Department of Business, Enterprise and Innovation is legally obligated to consider evidence even if the applicant’s case on its face appears not to meet the criteria. In refusing an application, the DBEI normally may not go into detail about specific evidence provided. This judgment follows a line of authority in Irish administrative decisions that there is an obligation to provide reasons for the decision. While the judgment may not affect most clients, it will assist in providing confidence that evidence and relevant information provided in an employment permit application and appeal will be taken into account and that reasons will be provided for the ultimate decision.