With effect from 11pm on 31 December 2020 following the end of the Brexit transition period, all non-EEA family members of UK nationals seeking to join, or accompany, their UK national family member in Ireland will need to apply (depending on nationality) through a pre-clearance or visa scheme.UK citizens will continue to enjoy arrangements under the Common Travel Area including the freedom to live in the State after the UK exits the EU. However, UK citizens have no automatic entitlement to have a non-EEA national family member reside with them in the State. A UK citizen may, however, ‘sponsor’ an application for permission for their specified non-EEA national family member(s) to reside with them in the State.
Applicants must apply before travelling to Ireland. Do not apply under this scheme if the intended stay is for less than 3 months.
The scheme applies both to visa required and non-visa required nationals. In cases of visa required nationals a visa will issue on foot of a pre-clearance application. Where an applicant is non visa required a Pre-Clearance letter will issue on foot of a pre-clearance application.
Considerations for UK national sponsors
The authorities will have reference to the below when considering applications under the new scheme:
• conduct of the sponsor / applicant,
• whether the applicant has come to the adverse attention of An Garda Síochána or the immigration authorities,
• capacity of the sponsor to support the family member financially for the duration of their proposed stay in the State,
• closeness and genuineness of the relationship between the sponsor and non EEA national, and
• the overall immigration history of the non-EEA national.
Finances
• A UK citizen must not have been totally or predominantly reliant on social protection benefits in the State or to equivalent benefits in another State for a continuous period of at least 2 years prior to the application.
• In addition, the sponsor must have earned a gross income in each of the 3 previous years in excess of that applied by the Department of Social Protection (DSP) in assessing eligibility for Working Family Payment (WFP). The WFP does not apply in the case of a married couple, civil partner / de facto partnership where there are no children and consequently a minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.
• It should be noted that evidence of having maintained a family member in a country that has a comparatively low level of per capita income is not of itself an indicator of the capacity of the sponsor a non EEA national spouse in Ireland.
• The onus is on the applicant to satisfy the Minister as to the level of earnings and anticipated earnings and to provide documentary evidence if requested. The Department may also consult with the DSP, the Revenue Commissioners or relevant competent authorities in other jurisdictions.
• Health Insurance: In addition, applicants are required to hold private medical insurance from a company authorised by the Health Insurance Authority (HIA) for the duration of their time in the State.
• Police clearance certificate: An applicant must provide a police clearance certificate or equivalent, not more than 6 months old for each country he/she has resided in within the past five years.
• A sponsor who is joined by a spouse, civil partner or a de facto partner in the State will, in the event of the termination of the marriage or partnership (by legal separation, divorce or on termination of de facto partnership), be ineligible to be joined by a further non-EEA national spouse or partner until a minimum of 7 years have elapsed from the date of the termination of the previous spousal relationship through legal separation / divorce/ or the termination of the de facto partner relationship.
Application categories
Category 1 – Spouse, Civil Partner, or de facto partner.
For spouses and civil partners there is no minimum duration of marriage / partnership required. Applicants have to be over 18 years of age to apply.
Cases involving de facto relationships must be exclusive for the full duration of the qualifying period. Prior to the application under this Scheme, de facto partners must have cohabited in a relationship akin to marriage for a minimum period of two years prior to the application for family reunification.
It should be noted that a commitment is required from both parties that they will reside together permanently in the State as spouses, civil partner or de facto partners immediately following the outcome of a successful application under this Scheme or as soon as circumstances allow. A declaration to this effect forms part of the application process.
For immigration purposes, a person may be considered the de facto partner, opposite or same sex partner, of another person if:
• they have a mutual commitment to a shared life to the exclusion of all others akin to a marriage or civil partnership in practice though not in law,
• the relationship between them is genuine and continuing,• they live together or do not live separately and apart on a permanent basis, for two years prior to the application.
In the case of a successful application under this Scheme, initial permission will be granted for a 12-month period on Stamp 4D conditions. Permissions to reside are regarded as temporary but may be renewed after the first year, on a Stamp 4D basis, for a further 2- year period and thereafter on a 3-year basis. This is provided that, on each renewal, the conditions under which the initial permission was granted continue to be met
The granting of temporary permission to reside in the State does not confer any entitlement or legitimate expectation on any other person, whether related to the applicant or not, to enter or remain in the State.
Category 2 – Dependent children of sponsor, spouse, Civil Partner or de facto partner who are not UK / EU/EEA citizens
The child will be a minor (i.e. under 18 years of age) living with its parents will be automatically assumed to be their dependent. The dependent child must be:
• the direct descendant of the sponsor or of his/her spouse, civil partner or de facto partner, or
• a legally adopted child of the sponsor or of his/her spouse, civil partner or de facto partner. In the cases of adopted children there are additional considerations to be met.
• The adoption must have been carried out in the state or is recognised under Irish law.
• There mut have been a genuine and complete transfer of parental responsibilities
• The child is one in respect of whom a guardianship or other equivalent legal order has been made in compliance with the relevant jurisdiction in which the order was made.
Also
Stepchildren will be treated as part of the immediate family when it is established that they are full-time members of the household of the sponsor and continue to reside with the sponsor at the time the application is made. Consent from the other biological parent is required in shared/joint custody arrangements. The child’s presence in the State gives no rights to visit or reside in the State to the other parent
Note however this arrangement does not include a child cared for by the sponsor, spouse, civil or de facto partner by virtue of an informal fostering/caring arrangement. It should also be noted that while they are required to obtain a visa or pre-clearance letter before travelling to the State, minor children under the age of 16 are not required to register the immigration permission they are granted.
Category 2 Grants. For those children over 16 years of age who are required to register their permission, such initial permission is granted for a 12-month period on Stamp 3 conditions. Permissions to reside are regarded as temporary but may be renewed after the first year, on a Stamp 3 basis, for a further 2- year period and thereafter on a 3-year basis. This is provided that, on each renewal, the conditions under which the initial permission was granted continue to be met. Assuming the circumstances remain the same, a person who reaches the age of 18 will be entitled to Stamp 4D, upon application.
Category 2 applicants for dependent persons over 18. This applies to direct descendants of the sponsor, spouse, civil partner or de facto partner as described above.
Dependency is described where the applicant is supported financially by the sponsor and/or the sponsor’s spouse, civil partner or de facto partner on a continuous basis. The dependency must be pre-existing, and sustained prior to the making of the application for family reunification. Relevant financial, medical or other documentary evidence must be supplied in support of the dependency. For example, the sponsor and the applicant must provide information and documentary evidence to show that:
• the applicant is in full-time education in their country of origin or current country of residence and intends to continue in full time education in the State, he/she is under 23 years of age, and needs the financial support of the sponsor and/or the spouse, civil partner or de facto partner of the sponsor,
• where the applicant is not in full time education in the State, he/she is over the age of 18 and is dependent on the care of the parent sponsor, directly or indirectly, due to a serious medical condition that makes independent life impossible,
• having regard to health, financial or social conditions, the applicant could not meet his/her essential living needs (in whole or in part) without the financial or other material support of the sponsor and/or the spouse, civil partner or de facto partner of the sponsor,
• such support is being provided to the applicant by the sponsor and/or the spouse, civil partner or de facto partner of the sponsor, and
• the need for such support existed in the applicant’s country of origin or his / her country of residence immediately prior to coming to the State.
Applicants and sponsors will need to demonstrate that such supports are not present in the country of origin. This will include the existence of other family members who could or should provide alternative support.
Grants for this category of applicant will be for a 12-month period on Stamp 4D conditions. Permissions to reside are regarded as temporary but may be renewed after the first year, on a Stamp 4D basis, for a further 2- year period and thereafter on a 3- year basis. This is provided that on each renewal, the conditions under which the initial permission was granted continue to be met.
The granting of temporary permission does not confer any entitlement or legitimate expectation on any other person, whether related to the applicant or not, to enter or remain in the State.
Category 4 Applications. Elderly dependent parents of the sponsor or of the spouse, civil partner or de facto partner of the sponsor.
Elderly parents are those who have attained the age required for eligibility in the State for the non-contributory State pension. As of October 2019 this is 66 years of age but this is subject to change. It should be noted that the sponsor must demonstrate their ability to fulfil their responsibility to provide for elderly dependent parent(s) if they are to be permitted to reside in the State.
A factor which the Department must consider is whether there is a reasonable alternative option of family members leaving the State to care for their elderly dependent parent in their country of residence.
Dependency is defined as in Category 2 above. In addition the following considerations require to be addressed. Sponsors and applicants must demonstrate
• there is no viable alternative to the parent coming to the State,
• the parent does not have financial resources to meet their essential needs in their country of origin, or country of residence even with remittances from the sponsor,
• the parent is not physically capable of independent living,
• there are no other family members in the parent’s country of residence/origin capable of providing support
• they can meet the financial thresholds for earnings to support the elderly parent(s) if they come to live in the State.
The following conditions also apply for Category 3 applicants
Applications can only be made from outside the State for both visa and non-visa required family members. Applications will not be accepted in respect of a person who has come to the State as a visitor and then seeks leave to remain.
A sponsor will be required to have earned in each of the 3 years preceding the application, an income after tax and deductions of not less that €60,000 per annum in the case of one parent. €75,000 per annum applies where two parents are involved.
Where the elderly parent has a guaranteed income into the future, this can be used to partially offset the financial limits. However, it will also be taken into consideration that a person with sufficient personal income for their needs cannot reasonably be regarded as financially dependent.
Elderly dependent parents must be covered by private medical insurance at or above the level which provides for private healthcare in a private hospital.The sponsor will be required to sign a legal undertaking to the effect that they will bear complete financial responsibility for the elderly parent and that any State funds availed of by the relative will be reimbursed by the sponsor. The sponsor will be required to make detailed provision for the accommodation of the elderly parent.
Category 3 grants. initial permission will be granted for a 12-month period on Stamp 0 conditions. Permissions to reside are regarded as temporary but may be renewed after the first year on a Stamp 0 basis, for a further 2 year period and thereafter on a 3-year basis. This is provided that on renewal, the conditions under which the initial permission was granted continue to be met.
Change of circumstances
If the family circumstances of the non-EEA nationals concerned changes after the granting of a residence permission under this Scheme, such changes must be notified to the Department of Justice. Such changes may be:
• death of the sponsor,
• departure from the State of the sponsor,
• divorce or annulment of a civil partnership,
• breakdown in de facto relationship.
In such circumstances the applicant may request permission in writing to reside in the State on an individual and personal basis subject to the Department’s requirements.
Application Process
All applications must be made from outside the State and applicants must be ordinarily resident outside of the State at the time of application. Proof of residence outside the State may be requested, and the applicant must remain outside the State while their application is being processed. There are exceptions to this for persons already resident in the sate for the purposes of work or study and who subsequently become a spouse, civil partner, or a de facto partner of a UK citizen. In the cases of these exceptions applicati0ons will be considered by Immigration Service Delivery – Domestic Residence and Permissions Division at the Department of Justice
Non EEA nationals who require an entry visa must apply for a along stay D class Visa prior to entering the state. Any non EEA nationals who are spouses or dependents of UK nationals living in the state who are not visa required will require to obtain a pre-clearance letter prior to travel. Entry to the state will be contingent on the issue or a D class visa for UK family reunification purposes (visa required nationals) or the production of a pre-clearance letter for the same purpose (non-visa required non EEA nationals).
Registration
All non EEA nationals, excluding UK nationals, remaining in the State for more than 90 consecutive days must register with the Department of Justice (Immigration Service Delivery) Registration Office or GNIB and be issued with a Certificate of Registration (IRP card). Please note a registration fee of €300 currently applies.
Grants will be for 12 months initially followed by a two year renewal if conditions associated with the initial grant continue to be met. Thereafter grants will be for three year periods subject to meeting the terms of the original grant of permission.
Immigration officers will have regard to the following:
• conduct of the sponsor and the applicant, including whether the sponsor / applicant has come to the adverse attention of An Garda Síochána or the immigration authorities,
• capacity of the sponsor to continue to support the family member financially for the duration of their proposed stay in the State, closeness and genuineness of the relationship between the sponsor and non EEA national family member, and continued residence by both the sponsor and applicant in the State.
Also consider
In determining the capacity of the sponsor to continue to support the applicant, the following documents must be presented to the Immigration Officer: i. by the sponsor, evidence of continuous residence in the State, a statement of benefits from DEASP, an Employment Detail Summary, and, in the case of a sponsor whose annual income is less than the level specified in sections 4.5 and 4.6, evidence of means, ii. by the applicant, evidence of continuous residence in the State and a statement of benefits from DEASP. 12.5 The applicant must also provide evidence of continuing health insurance of a level acceptable for this Scheme.
Grounds for refusal
An Immigration Officer may refuse to issue a renewal of permission under this Scheme if he or she is of the opinion that
• the sponsor or applicant do not continue to fulfil the criteria for this Scheme, or
• the sponsor and applicant are not continuously resident in the State,
Refusal on grounds of Public Policy, Terrorism, Criminality, Public Health
A person can be refused on grounds of public security if they pose a threat to the State, or another State, through terrorism or support for terrorist activities, if they pose a threat of incitement to hatred, if they pose a risk of criminal behaviour, or of violence against one or more persons. A criminal record will not automatically exclude a person from consideration for family reunification, but it is highly influential in any consideration of the merits of the individual case.
Public policy is a broader term and encompasses issues such as the economic and social wellbeing of the State. Immigration policy is informed by a wide range of government policies in different areas. Concerns of public policy should inform all immigration decisions, and this applies in the case of family reunification.
Public health considerations primarily arise in the context of contagious diseases, for instance in the case of a pandemic.
Any residence granted through family reunification obtained because of fraud, false information, misrepresentation, or abuse of rights (including through a marriage / relationship of convenience) shall be forfeit and any time spent in the State will not be reckonable for naturalisation or other immigration purposes.
Conclusions
The documentation requirements associated with the new Stamp 4D applications are detailed and require very careful attention. There is no automatic entitlement that the non EEA dependent of a UK national residing in the state may seek entry and reside in Ireland on the basis of that relationship. It will be necessary to give the application time and take a forensic attitude to the documentation that is to be submitted in support of it.
We have experience submitting family reunification applications through EU Treaty Rights and domestic Irish visa schemes and will be delighted to assist. What will be significant with the new scheme is that pre-Clearance will need to be sought by all non visa required non EEA nationals as well as visa required nationals. The scheme bears many of the procedural hallmarks associated with the EU Treaty Rights application scheme that it replaces. The grounds on which grants will be made will be based on Irish domestic immigration considerations and not any rights that inhere in EU citizenship. Grants will therefore be at the discretion of the Irish authorities.
Contact us if you are considering a Stamp 4 D Pre-Clearance application. We will be delighted to assist.
