Search
Contact
Login
Share this article
IMPACT – MEDIUM
What is the change? Following the state’s appeal of a court decision that imposed a six-week processing deadline on family visa applications that are based on EU treaty rights, the Irish Court of Appeal has referred several questions to the Court of Justice of the European Union. The state had failed to make a decision on an EU Treaty Rights-based family entry visa application “as soon as possible and on the basis of an accelerated process.”
What does the change mean? It is unclear what time frame the state authorities must process applications within and what “as soon as possible and on the basis of an accelerated process” means. Employers should anticipate the likelihood of delays to these types of applications.
Background: State authorities have seen a surge in visa applications based on EU treaty rights, causing a delay in processing of 12 months or more. Applicants challenged this delay and the Irish High Court ruled that the applications must be decided on an “accelerated procedure” and directed the state to decide the visa applications within six weeks due to the particular context of delay in one of the cases in the appeal. The state appealed the decision to the Court of Appeal, which has referred several questions to the Court of Justice of the EU. Among the questions the Court of Justice will decide is whether the surge in applications may justify a longer processing time and whether the state may take longer to process applications in order to conduct additional background checks regarding security or whether the application is based on bona fide relationships, such as a marriage.
The Court of Appeal decision, Mahomood & Ors v. The Minister for Justice, (2018) IECA 3, may be viewed here.
BAL Analysis: All EU treaty-right visa applications are likely to be affected, in particular applicants sponsoring family members in Afghanistan, Pakistan and Iraq. The Court of Appeal decision does not state the allowable processing time, and more litigation is likely to challenge delays. As there is currently a backlog of more than 4,000 cases, BAL anticipates that the Court of Justice of the EU is likely to affix an early hearing date. Due to the potential for impact across the EU, it is likely that many other member states will take part in or make submissions on the reference.
This alert has been provided by the BAL Global Practice group. For additional information, please contact ireland@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Ireland will institute interim measures to provide work rights to qualifying international protection applicants as it awaits for final approval on a plan to opt in to the EU (recast) Reception Conditions Directive.
What does the change mean? Starting Feb. 9, applicants for international protection will be able to access the Department of Business, Enterprise and Innovation’s employment permits system on the same basis as other non-EEA nationals. Authorities will also introduce a scheme to allow self-employment for international protection applicants who have waited nine months or more for an initial decision on their application. A government task force will continue to make arrangements for Ireland to opt in to the EU directive as soon as possible.
Background: In May, Ireland’s Supreme Court struck down in principle the country’s ban on work authorization for asylum seekers. The court gave the state six months to consider its response. Justice Minister Charlie Flanagan subsequently accepted a task force recommendation to opt in to the EU (recast) Reception Conditions Directive (2013/33/EU) as a means of complying with the court judgment and providing work authorization to international protection applicants. Because that process will take some months to complete, authorities will implement the measures described above during the interim.
BAL Analysis: The Irish government is moving to fulfill its obligations under the Supreme Court’s May judgment in NVH v Minister for Justice and Equality. The state’s decision to provide interim measures and, eventually, to opt in to the EU directive will expand asylum seekers’ access to the Irish labor market and potentially lead to further changes in the employment permits regime.
What is the change? Ireland has lifted visa requirements for nationals of the United Arab Emirates.
What does the change mean? Beginning Wednesday, UAE nationals will be able to travel to Ireland for short-stay business or tourism without first obtaining a visa. Visa-free entry will be valid for stays of up to 90 days.
Background: The European Union and the UAE signed a landmark visa agreement in 2015, but Ireland and the United Kingdom were not covered by it. Irish Justice Minister Charlie Flanagan recently announced that visa requirements would be lifted for UAE nationals traveling to Ireland, saying that the action would benefit trade and tourism. The UAE currently allows Irish nationals to visit the UAE for 30 dayswithout first obtaining a visa. BAL will alert clients if there is any change to the UAE’s visa policy for Irish nationals.
BAL Analysis: The visa arrangement will ease travel for UAE nationals traveling to Ireland for business or tourism. Travelers should note that work activities require an employment permit.
What is the change? Irish authorities have said that letters of approval issued under the Atypical Working Scheme will remain valid only for 90 days.
What does the change mean? Non-EU nationals applying to work under the Atypical Working Scheme must now use their letter of approval within 90 days or submit a fresh application.
Background: The Atypical Working Scheme allows non-EEA nationals to come to Ireland for between 15 and 90 days for work that is not governed by the Employment Permits Act. Applicants must apply for the Scheme from outside of Ireland and are not permitted to travel to Ireland until they receive a letter of approval from the Irish Naturalisation and Immigration Service. Visa-required nationals must include a copy of the letter of approval with their application for an entry visa. Under a recently announced rule, letters of approval will only remain valid for 90 days, and those who do not enter Ireland within the 90-day time frame will be required to submit a new application.
BAL Analysis: The rule increases the importance of proper planning by employers and those intending to come to Ireland to work under the Atypical Working Scheme. This is particularly important for visa-required nationals who need a letter of approval in order to apply for an entry visa. Those who do not travel to Ireland within 90 days will likely see delays in their start dates because they will be forced to go through the application process again.
What is the change? Ireland has increased its minimum wage 3 percent from €9.25 per hour to €9.55 per hour.
What does the change mean? The change could affect the wages paid to workers in several work permit categories, including those working on Atypical Working Scheme (AWS) visas, dependents or interns on employment visas and, in some cases, those working on intracompany transfer (ICT) 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.
BAL Analysis: Companies should identify employees and assignees whose salaries require adjustment and make the appropriate increases to meet the new statutory minimum wage.
What is the change? The Irish government is poised to review the country’s employment permit system, with an eye toward expanding the number of employment permits for low-skilled workers in some sectors.
What does the change mean? No changes or official recommendations have been made yet, but a move toward providing more employment permits for low-skilled workers could help sectors in which employers say they are having trouble filling jobs with Irish or EU workers.
Background: Ireland’s employment permit regime focuses on key sectors and skills shortages, especially in economically strategic enterprises with potential for jobs growth. RTÉ and the Independent reported this week that the Department of Business, Enterprise and Innovation has come under pressure to allow more low-skilled workers in certain sectors. Farming, construction and food services were listed as areas that may be in particular need of low-skilled workers from outside of the EU. The reports said that the department prepared a brief in December on possible changes to the employment system for Heather Humphreys, the new minister for Business, Enterprise and Innovation, saying that a government working group would be created with the “principle objective” of considering “the rationale for an employment permit system where the economy is improving and the labour market is tightening.”
BAL Analysis: While reforms to the employment permit system would be welcomed by some employers, the changes that have been discussed so far would mostly be geared toward low-skilled workers. BAL will continue following developments in Ireland and will report on any significant developments in the country’s review of its employment permit regime.
What is the change? The Burgh Quay Re-Entry Visa Office in Dublin will be open on a limited basis for emergency appointments next week.
What does the change mean? The office will close Friday, Dec. 22, at 12:30 p.m. and will be open for emergency appointments only from 9 a.m. to 12:30 p.m. on Dec, 27, 28 and 29. Normal business hours will resume at 8:30 a.m. on Jan. 2.
Background: Offices in countries around the world will close for the Christmas and New Year’s holidays. In Ireland, those in need of re-entry visas for international travel were urged to apply early, but a limited number of emergency appointments will be available next week.
BAL Analysis: Those in need of an emergency re-entry visa for international travel should book an appointment as soon as possible or contact BAL.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Ireland is replacing GNIB (certificate of registration) cards with new Irish Residence Permits in order to conform with European Union standards.
What does the change mean? New IRP cards will be issued starting Dec. 11, but foreign residents currently holding valid GNIB cards should wait until their cards expire before applying for the new IRP cards.
Background: The IRP is a credit-card sized registration certificate containing a microchip that proves its holder is registered with the Irish Naturalisation and Immigration Service. All non-EU/EEA/Swiss nationals ages 16 and older who intend to stay in Ireland longer than 90 days must register for a residence permit with the appropriate immigration registration office. The government fee for the IRP is 300 euros.
BAL Analysis: Expatriate residents are reminded that they should carry their IRP card with them at all times and present it to immigration officers or police officers if requested. The card does not confer any new rights or entitlements or serve as a travel document, however.
IMPACT – HIGH
The European Union and the United Kingdom have reached a deal on phase one Brexit issues, with the U.K. making key concessions on the rights of EU citizens in the U.K. and agreeing to avoid formation of a hard land border between Ireland and Northern Ireland, and both parties agreeing to the methodology of a financial settlement.
EU and U.K. negotiators issued a 15-page joint report Friday detailing the agreement in principle and the commitments of each side to be reflected under a full withdrawal agreement. The agreement allows the negotiators to move on to phase two talks dealing with trade.
Key immigration-related provisions are summarized as follows.
Citizens’ rights:
Ireland and Northern Ireland:
The agreement recognizes the unique challenges presented by the U.K.’s withdrawal from the EU and notes that this agreement will not predetermine the outcome of wider discussions. Nonetheless, the following principles are key:
BAL Analysis: The agreement provides greater certainty for EU citizens living in the U.K. (and British citizens living in the EU) regarding their current and future rights and should help them plan accordingly. In particular, the cutoff date for retaining EU rights will not be earlier than the date of withdrawal, meaning that all EU nationals in the U.K. and British citizens in the EU exercising treaty rights on the day of Brexit will have these rights preserved at least until they have gained permanent residence. (This is likely to be called “settled status” under the U.K.’s domestic regime). They will be permitted to bring family members even after Brexit and after the two-year transition period. They will have their EU permanent residence rights recognized by the U.K., which provides an incentive to apply now for permanent residency. Those who have not yet accrued the five years needed for permanent residency will gain residence status using streamlined procedures with evidentiary flexibility that prevents rejection based on administrative errors and omissions.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Brexit negotiations have broken down over the issue of Ireland and Northern Ireland, as U.K. Prime Minister Theresa May’s proposal has been rejected by the Democratic Unionist Party, the largest party in Northern Ireland. The DUP is staunchly in favor of Northern Ireland remaining part of the U.K. and currently supports May’s minority government.
In a leaked draft proposal, May proposed that Northern Ireland keep some form of “regulatory alignment” with European Union regulations and remain in the single market, essentially creating an exception to the U.K.’s withdrawal from the EU. The DUP, however, sees the proposal as treating Northern Ireland differently from the rest of the U.K. and a step toward Irish reunification, which it opposes.
“We have been very clear,” DUP leader Arlene Foster said. “Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom. The economic and constitutional integrity of the United Kingdom will not be compromised in any way.”
The breakdown of Brexit talks not only puts EU-U.K. trade talks on ice, but also weakens the fragile U.K. Conservative governing majority and could significantly complicate Brexit.
Ireland’s Prime Minister Leo Varadkar expressed surprise and disappointment at the last-minute failure of the EU-U.K. agreement that Ireland was ready to approve. He said that Brexit talks cannot move ahead without assurances from Britain that no hard border will be established between Ireland and Northern Ireland. “The ball is very much in London’s court,” he said. On Wednesday, according to press reports, the Irish government expressed its willingness to accept an additional provision within the EU-U.K. agreement stating that the agreement would not compromise the integrity of the U.K.
Those seeking a softer Brexit quickly seized on the moment to indicate that if Northern Ireland is exempted from Brexit, so too should others. Scotland’s First Minister Nicola Sturgeon said on Twitter that if one part of the U.K. can retain regulatory alignment with the EU and effectively stay in the single market, “there is surely no good practical reason why others can’t.” London Mayor Sadiq Khan and Wales’ First Minister Carwyn Jones chimed in, saying that their regions would also seek to remain in the EU single market.
BAL Analysis: The collapse of the agreement on Ireland threatens to delay or derail Brexit talks. May and the DUP reportedly have until Sunday at the latest to reach an agreement with the EU on the Irish border issue. This would conclude phase I of Brexit negotiations and is necessary before they can move on to discussions about the U.K.’s future trade relations with the EU. BAL is following all Brexit developments and will report on any new developments. For background on the Irish issues involved in Brexit, read BAL’s white paper, “Brexit: What’s at Stake for Ireland.”