IRELAND – Business Immigration Update: Developments in July 2019
2019 continues to be a busy year for Irish immigration with 3 further significant developments occurring in July alone.
Increases to Salary Thresholds for Critical Skills Employment Permits and Other Changes
Regulations were introduced on 9 July 2019, although most of the changes will come into operation on 1 January 2020: -
The minimum salary threshold for Critical Skills Employment Permits will increase from €30,000 to €32,000 where the job position is on the Highly Skilled Eligible Occupations List and where the candidate has a relevant degree or higher. The minimum salary threshold for Critical Skills Employment Permits will increase from €60,000 to €64,000 for all other job positions (other than those on the Ineligible Categories of Employment for Employment Permits). The time period for advertising a job vacancy with the Department of Employment Affairs and Social Protection (as part of the Labour Market Needs Test) will increase from 14 days to 28 days. The validity of an applicant’s passport, when applying for an employment permit, has been reduced from the current requirement of 12 months’ validity to 6 months.
Commentary: The current minimum salary thresholds for Critical Skills Employment Permits have existed at these levels for many years and it is therefore unsurprising that they will be increased in January 2020.
New Online Renewal System for Non-EEA National Third Level Students
From 26 August 2019, non-EEA national third level students who live in the greater Dublin area will be able to renew their immigration registration by way of a mandatory online process.
The existing system requires non-EEA national third level students to register in person each year at Garda National Immigration Bureau (GNIB) at Burgh Quay in Dublin, resulting in lengthy queues annually from September to November. The new online system for students will ease the pressure on the already creaking GNIB registration system in Dublin which was used by 83,400 non-EEA nationals in 2018.
The new online system will only be accessible to students who reside in Dublin and who are renewing their immigration permission i.e. it cannot be used by first-time registrants or by students residing outside Dublin. Students residing outside Dublin must, as usual, attend at their Garda district office in order to renew their immigration permission. The Irish Naturalisation and Immigration Service (INIS) estimates that up to 8,000 non-EEA national students will use the new system between September and November 2019.
In terms of how the new online registration process will work in practice, an applicant will submit their application online, to include the required supporting documents and processing fee. They must then send their original passport to INIS who will place the usual immigration stamp in the passport and return it to the applicant by registered post. INIS will also send the applicant’s Irish Residence Permit Card to them by registered post.
Commentary: This is a welcome change to a service that badly needs to be updated in order to make it more accessible and user-friendly. In addition, INIS’s statement that it will “consider extending the system to other categories of customers in line with other reform developments underway under its Customer Service Improvements Plan” is also to be welcomed.
Controversial Irish Citizenship Case
On 11 July 2019, Judge Barrett of the Irish High Court ruled that applicants for Irish citizenship by naturalisation require “a period of one year’s continuous residence in the State immediately before the date of the application” which period…..must be “unbroken, uninterrupted, connected throughout in space or time””. The effect of this ruling is that, as the law currently stands, applicants for Irish citizenship by naturalisation cannot be absent from Ireland for even 1 day in the year immediately preceding their application.
The case involved an Australian national, Mr Roderick Jones, who had applied to become a naturalised Irish citizen. Mr Jones’ application was refused by the Minister for Justice & Equality (the “Minister”) on the basis that he had been absent from Ireland for 100 days in the year immediately preceding the submission of his application, being a period in excess of the usual permissible discretionary period of absence of 6 weeks then being applied by the Minister. Prior to this case being decided, the Minister had applied a “discretionary absence period of 6 weeks + possibly more in exceptional or unavoidable circumstances” in determining whether to grant an application for citizenship by naturalisation. This is in circumstances where section 15(1)(c) of the Irish Nationality and Citizenship Act, 1956 (as amended), provides that the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant (amongst other things) -
“has had a period of one year’s continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years”. [emphasis added]
Judge Barrett held that this section of the legislation “does not confer any discretionary power on the Minister”, that “an applicant either has had a period of one year’s continuous residence or he has not” and that there is no basis in the legislation for introducing the discretionary absence period previously used by the Minister.
Commentary: Although Judge Barrett’s decision has been greeted with much alarm by both applicants and legal practitioners/immigration advisers, the Minister has, as expected, acted quickly to assuage those concerns. On 18 July 2019, the Minister issued a short statement stating that “This issue is being dealt with as an urgent priority and I will take any necessary action to resolve it”. On 29 July 2019, INIS issued an updated statement which re-iterated that it was “continuing to work on finding solution to the situation as quickly as possible” and further stating that: -
the Minister had obtained cabinet approval for a proposed Bill which would resolve the issue and that it is his intention to have the Bill drafted and before the Houses of the Oireachtas for consideration in mid-September 2019, as soon at the parliamentary Summer recess ends; INIS’s advice for people who are planning to apply for citizenship is to continue to collect the necessary supporting proofs and to submit a comprehensive application form; once a solution is in place, if any additional information is required, applicants will be contacted as part of the processing of their application; and INIS does not believe that the High Court ruling has consequences for anyone who has already obtained citizenship by naturalisation.
In the meantime, Mr Jones has appealed the High Court ruling and his appeal has been listed, by way of a priority listing, before the Court of Appeal to be heard on 8 October 2019, being the first available date in the new legal term. However, we understand that the hearing date is subject to the Court of Appeal being allocated a promised six extra judges by that time.
In all likelihood the issue will be rectified by legislation rather than by the Irish courts and we expect this to occur within a short time period. In the meantime, applicants should continue submitting their applications and providing INIS with any additional information requested.