The Department of Justice has received Government approval for the establishment of a Regularisation Scheme for Undocumented Migrants in Ireland.
The Department aims to open the Scheme during the First Quarter of 2022.
This Scheme is part of the Programme for Government Commitment (PPF 2020), which undertook to bring forward proposals for the regularisation of long-term undocumented migrants i.e. to “create new pathways for long-term undocumented people and their dependents, meeting specified criteria to regularise their status within 18 months of the formation of the Government, bearing In mind EU and Common Travel Areal commitments”.
Undocumented Migrants are defined as non-EEA nationals who entered Ireland irregularly and never had a permission; those who may have applied for permission but were unsuccessful in securing a permission; and those whose permission expired or was withdrawn a long time ago.
Number of undocumented in the State: There is no official statistics, but the Migrants Rights Centre Ireland (MRCI) estimate there could be between 15,000 to 17,000 including 2,000 to 3,000 children.
An MRCI survey found that 75.5% of the 1,000 undocumented participants had been in Ireland for 5 years or more, 93% were working and 70% aged 24-44 years.
In a briefing session held on 1 December 2021, Department officials gave the following information about the Scheme:
NATURE & DURATION OF THE SCHEME:
The Scheme will operate on administrative basis under the executive power of the Minister.
The Scheme will be open for 6 months. There is no current plan to extend this period at this moment.
WHO CAN APPLY FOR THE SCHEME?
Persons who are long-term undocumented when the Scheme opens and meet the residency criteria and meet other criteria on the elate the Scheme opens. This will include persons who have Deportation Orders made in respect of them or who have made representations for permission to remain under section 3 of the Immigration Act 1999.
- Persons who have been living in the Sate undocumented for 4 years up to the Scheme’s opening date:
- Individuals aged 18 and over, where they have no dependant children living with them;
- Each member of a couple i.e. a person and their spouse/partner where they have no dependent children;
- Older children aged 18-23 years living with family where no siblings under age 18 years;
- Children aged 24 years and over living with their family;
- Persons who have been living in the State undocumented for 3 years up to the Scheme’s opening date:
- A person or each member of a couple where dependent children aged unt 18 years live with them;
- Older children aged 18-23 years living in that family household with younger siblings.
The period of undocumented residency will count from the time the person last had a live permission to remain (i.e. from the date of expiry onward). For those who never had permission, the relevant date will be that from when they arrived in the country, including those with DO and revocation representations submitted.
A person who may have been undocumented for more than four years, but then made an application for international protection in the last 2 years would not qualify under Scheme.
BREAK IN THE RESIDENCY PERIOD:
The Scheme will allow to be disregarded a short period of absence from the State in the undocumented period for those who would otherwise qualify.
This will be limited to a break of up to a maximum of 60 days absence and the documented period arising from the short-term tourist permission (up to 90 days) that applies thereafter on re-entry to the State.
The residency break will involve someone leaving up to 60 days and given short term visa for 90 days. So a maximum of 150 days (60 of absence plus 90 short-term visitor permission) will be allowed.
There will be no requirement for applicants to demonstrate that they would not be a financial burden on the State.
Applicants must meet standards regarding good character and in terms of criminal record/behaviour. Having convictions for very minor infractions will not, of itself, result in disqualification.
Applicants must not pose a threat to national security of the State or another State.
Provision of the required documentation to support an application – ID, family relationship and residence.
Applications will be refused where they do not meet all of the criteria for the Scheme including residency, character/conduct, threat to State etc.
Provision of inadequate or inconsistent information.
Applications will not be accepted where any false or misleading information is provided.
Unsuccessful applicants will have the opportunity to appeal a negative first instance decision.
Appeals must be received by the Immigration service within a specific timeframe which will allow ample time for the making of an appeal
The officer may either confirm the original decision or grant approval of the application
SEPARATE STRAND FOR INTERNATIONAL PROTECTION APPLICANTS:
There will be a separate strand to the Regularisation Scheme for International Protection Applicants who are in the process for a minimum of 2 years prior to the opening date of the Scheme.
Details of criteria and application process for same being finalised.
This Is relevant in context of the recommendation in the Catherine Day report which suggested that a one-off case processing approach be introduced to clear a backlog of current cases which have been 2 years or more in the system.
Each applicant who is successful under this Scheme will be issued with a letter confirming their residence permission (Stamp 4).
The permission will allow immediate access to the labour market
The permission will be granted for an initial period of two years. The permission may be renewed thereafter provided the conditions under which the initial permission was granted continue to be met.
This Scheme will not create any new entitlements to family reunification. At a future date they can apply under the Policy Document on Non-EEA Family Reunification subject to meet the criteria for same.
For those who are unsuccessful, including on appeal, such cases will be forwarded to the Repatriation Unit for consideration. At this stage, applicants will still have opportunity to make representations as to why they should not be removed from the State, and Constitutional and EU rights will need to be considered at that stage.
For those unsuccessful applicants who are subject to a Deportation Order or in the Section 3 process, such cases will remain for processing by the relevant area.
It is anticipated that a small percentage of persons will be refused as the eligibility criteria, as asset out above, is very clear.
At this point in time, the Department said that the following fees would apply:
Family Unit Application:
- Covers main applicant an dtheir spouses / civil partner / de facto partner and their dependent children under age of 18 years.
- Will cover those aged 18-23 years where eligible to be included.
International Protection Strand Application:
- No Fee.
The Department received requests from stakeholders that some exceptions be made in respect of fees, for example in cases of hardship or in cases of vulnerable persons such as persons victims of domestic violence. The Department said they would look into this possibility but it gave no indication that any change would be introduced.
The Scheme’s Application Process a straight forward, user-friendly online application process, through the ISD Online Portal.
Support available on request for people who experience difficulty in completing online applications.
The Fee will have to be paid when applying online.
Applicants will have to complete the application form online; attach the supporting documentation online; submit the payment online; and check that the application has been successfully submitted and accepted for processing.
There will be Individual and Family Forms available.
Each applicant will be assessed individually and different decisions may issue if not all family members are eligible.
Applicants over 16 years old will need to Register.
There will be an e-Vetting process: the documents provided will have to be verified; there will be a link to an e-Vetting form to be completed within 30 days; the ISD will verify the identity with the GNIB.
The Online Application Process will contain 4 key sections:
- Data Privacy Notice
- Application Details including Criminality Declaration
- Upload documents
A Representative can complete the application form on behalf of an applicant.
There is not an exhaustive List of Documents that will have to be submitted. Documents will have to prove the identity of the applicant, the applicant’s residency within the State, the claimed family connection.
Out of date passports will be accepted as evidence of identity.
PERSONS WHO HAVE HAD THEIR PERMISSION TO REMAIN RETROSPECTIVELY REVOKED OR TERMINATED (ESPECIALLY THEIR EU TREATY RIGHTS PERMISSION TO REMAIN):
The Department said that these persons have had their permission to remain revoked ab initio, i.e. from the start, so they will be deemed to have been undocumented from the date when they were granted the permission to remain that was subsequently revoked. In other words, the applicant will be considered to have been undocumented during the period of permission to remain which was later revoked.
On the other hand, applicants who had their permission to remain terminated after a review in cases that do not involve ‘fraud’, for example, where the EU Citizen sponsor has left the State etc, then in these cases the applicant will be deemed to be undocumented from the date of the termination of the permission to remain.
CASES WHERE THERE HAS BEEN A FINDING THAT A MARRIAGE WAS A ‘MARRIAGE OF CONVENEINCE’:
The Department said that such a finding might not necessarily disqualify an applicant, but if someone has been involved in facilitating “immigration abuse on widescale, then that would be another story”.
A significant issue arises in respect of applicants for international protection who avail of this Scheme, in that it appears that, in applying under the Scheme, they will give up the rights they would gain in the event they were granted Refugee Status or Subsidiary Protection Status, namely the right to apply for Family Reunification (under s. 56 of the International Protection Act 2015), the right to apply for a Travel Document in the case of Refugees (under s. 55 of the 2015 Act) and in the case of Refugees and in relation to Naturalisation, the possibility of availing of the Minister’s policy which deems Refugees eligible to apply three years after they arrive in the State. It would be preferable if international protection applicants who have been in the process for over two years were able to apply under the Regularisation Scheme without prejudice to their right to have their international protection claim processed to its conclusion. Failure to do so may raise questions under EU Law.
A second issue in our view arises in relation to the required fees in that there may be particularly vulnerable applicants who may not have the necessary funds or ways to raise such funds, such that it would seem appropriate for the Department to allow for exceptions to be made on a case-by-case basis.
Overall, the introduction of this Scheme is extremely welcome and a very positive development for many undocumented migrants in Ireland and the Government and all stakeholders who have been advocating for same deserve credit.
DLCM SOLICITORS LLP